STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWARD COUNTY SCHOOL BOARD,
vs.
Petitioner,
Case No. 15-3863TTS
PAULA SINCLAIR,
Respondent.
/
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case on March 1, September 1, and October 17 and 18, 2016, at video teleconferencing sites in Fort Lauderdale and Tallahassee, Florida, before Administrative Law Judge June C. McKinney of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Charles T. Whitelock, Esquire
Charles T. Whitelock, P.A.
300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316
For Respondent: Melissa C. Mihok, Esquire
Melissa C. Mihok, P.A.
201 East Pine Street, Suite 445 Orlando, Florida 32801
STATEMENT OF THE ISSUE
The issue in this case is whether there is just cause to terminate Paula Sinclair's employment with the Broward County
School Board based upon the allegations made in its Administrative Complaint dated July 9, 2015.
PRELIMINARY STATEMENT
By letter dated June 11, 2015, Paula Sinclair ("Respondent" or "Sinclair") was notified that Broward County School Board ("Petitioner" or "School Board" or "District") took action to suspend and terminate Respondent's employment.
Respondent timely elected to dispute the reasons for the termination and requested a hearing. Because she requested a formal proceeding, the matter was referred to the Division of Administrative Hearings ("DOAH"). An Administrative Complaint was filed on July 9, 2015. The School Board charged Sinclair with seven counts: Count 1, Misconduct in Office,
section 1012.33, Florida Statutes, and Florida Administrative Code Rule 6A-5.056(2)(a) and (b); Count 2, Misconduct in Office, section 1012.33 and rule 6A-5.056(2)(c)(d) and (e); Count 3, Incompetency, section 1012.33 and rule 6A-5.056(3)(a) and (b); Count 4, Failure to Correct Performance Deficiencies,
section 1012.34; Count 5, violation of section 1012.53(1); Count 6, violation of section 1012.53(2); and Count 7, School Board Policy 4008(B). A final hearing was scheduled and proceeded on March 1, 2016. The hearing continued on September 1, 2016, and October 17 and 18, 2016.
At hearing, Petitioner presented the testimony of ten witnesses: Jimmy Arrojo, principal; Mary Jones, assistant principal; Lauren Cohen, school counselor director; Gisela Suarez, peer reviewer; Michael Lyons, assistant principal; Lupita Wiggins, counselor; Nardia Corridon, peer reviewer; Nandranie Busjit-Bhalai, guidance director; Shernette Grant, principal; and Tanya Thompson, evaluation coordinator.
Petitioner's Exhibits numbered 1 through 24 were admitted into evidence. Respondent testified on her own behalf. Respondent's Exhibits 2 through 4 were admitted into evidence.
At the close of the hearing, the parties stipulated that the proposed recommended orders would be due 30 days after the filing of the transcript. The five volume Transcript of the final hearing was filed with DOAH on December 7, 2016. The undersigned granted a Joint Motion for Extension of Time to file proposed recommended orders and the deadline was extended to January 30, 2017. Both parties filed timely proposed recommended orders, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Broward County, Florida. Article IX, Florida
Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees.
§ 1012.22(1)(f), Fla. Stat.
Sinclair started her employment with Petitioner in 2007. She was employed as a guidance counselor pursuant to a professional services contract.
Sinclair has a Florida Educator's Certificate and received a bachelor's degree in youth and community studies from Surrey University in England, a postgraduate diploma in social work and criminology from Middlesex University in England, and a master's degree in school guidance counseling from Nova University.
Sinclair was a guidance counselor at Walter C. Young Middle School for the 2007-2008 school year.
The following school term, 2008-2009 school year, Sinclair transferred to New River Middle School and held the position of a guidance counselor.
2009-2010 School Year
Sinclair was placed at Indian Ridge Middle School ("Indian Ridge") for the 2009-2010 school year. She was assigned as the eighth grade guidance counselor.
On August 3, 2009, Assistant Principal Michael Lyons ("Lyons"), and Busjit-Bhalil ("Busjit"), guidance counselor, met with Sinclair to explain her duties and responsibilities.
Indian Ridge opened for the school year on August 25, 2009, and Sinclair started getting parent complaints about her performance. She also started making scheduling errors.
On August 27, 2009, Sinclair had her first conference with Lyons.
On August 28, 2009, Lyons had a second conference with Sinclair regarding her scheduling being taken over by Busjit because Sinclair was either not completing the work or the work was not timely done.
On September 2, 2009, Lyons set a meeting for September 8, 2009, with Sinclair, Busjit, and Zagari to discuss Sinclair's job performance because Sinclair had made numerous mistakes. On September 3, 2009, Sinclair placed an eighth grade student in a seventh grade course.
On September 11, 2009, Lyons met with Sinclair and outlined Sinclair's major areas of job performance concerns. Scheduling, poor communications with parents, inability to provide accurate information, and failure to read and respond to emails in a timely manner were addressed with Sinclair. Lyons set up a cycle of assistance to provide Sinclair the help she needed to bring her performance up to District level.
Lyons also provided Sinclair training. He directed Sinclair to work with the following co-workers to get specific training in the different areas she needed improvement: Busjit,
to review all guidance functions and duties, scheduling practices, procedures and protocols; Nancy Bourbeau ("Bourbeau") for TERMS1/; Susan Perless ("Perless") in regard to ESE students; Brown for best practices with parents and to read CAB system emails daily, as well as formulate a record-keeping system for phone communications. During the meeting, Sinclair responded by staring silently at Lyons. Sinclair was provided two weeks to correct the performance deficiencies.
On September 15, 2009, Lyons followed up the meeting discussions from September 11, 2009, with a memo to Sinclair outlining the serious concerns regarding her job performance. The memo deemed the following areas substandard:
Students being placed in double reading classes that are not designed for being double blocked.
Placing 8th grade students in 7th grade classes.
Placing advanced students in regular education classes.
Providing only 5 courses for students when they should have 6 courses.
Wrong team designations on student schedules.
Incorrect course and section numbers on student schedules.
Interacting with parents in a curt manner.
Failure to return phone calls from parents.
Providing wrong or inadequate information to parents.
Failure to follow direction in formulating a new algebra class.
Failure to notify impacted teachers of schedule changes.
Failure to process schedule changes in a timely manner.
Failure to open and read emails in a timely manner.
A general lack of "Withitness" in regard to school matters.
On September 15, 2009, Busjit started Sinclair's training on TERMS panels. She reviewed the differences among the intensive reading classes and processes for accessing the server and database.
On September 16, 2009, Bourbeau, data management specialist, trained Sinclair on TERMS and scheduling. Bourbeau went through every panel guidance counselors needed to know and discussed the procedures of a schedule change, as well as how to create a new schedule.
On September 22, 2009, Perless, ESE specialist, reviewed the different roles in ESE with Sinclair, went over the panels in TERMS, and discussed the role of guidance in the area of ESE.
After Sinclair received the training and assistance, her performance did not improve at all. She was inept in performing scheduling tasks and continued to assign students to the wrong class.
Busjit continued to instruct Sinclair numerous times on the process of scheduling students properly.
On December 4, 2009, Lyons discovered the physical education ("PE") waivers2/ were not completed. Lyons provided Sinclair a directive to ensure that all students in need of a PE waiver have one by December 18, 2009. Lyons first instructed Sinclair to perform the task by August 28, 2009, previously extended the deadline to November 13, 2009, and addressed the issue again on November 16, 2009.
On or about December 4, 2009, a conference was held with Sinclair, which was detailed in a summary of conference memo dated December 8, 2009. The memo detailed that Sinclair would continue to receive assistance to help improve her performance, but if her performance did not improve, she would be placed on a Performance Development Plan ("PDP").
The next day Sinclair was absent from work. On December 18, 2009, Lyons wrote a memo to Respondent concerning her excessive absenteeism and requested Sinclair to provide a doctor's note justifying her absences since December 9, 2009.
On December 19, 2009, Sinclair produced a Return to Work Certificate from Dr. Alvarez ("Alvarez") with a return date to start during the school holiday period, December 21, 2009.
On or about January 15, 2010, Sinclair reported that she was taken to the emergency room the previous evening and filed for Family Medical Leave ("FMLA") requesting 12 weeks of leave from work. The request was accompanied by a Certificate
of Health Care Provider and stated Sinclair had been treated by Alvarez since 1997 and was unable to perform her duties.
On January 15, 2010, while out on FMLA, Sinclair applied for a hardship transfer to another school for the 2010- 2011 school year.
On February 19, 2010, while on leave Sinclair also filed a discrimination charge against Lyons and the principal, which was denied.
Upon Sinclair's return to work, her inability to perform her duties continued, and she made repeated mistakes. Sinclair failed to submit the students' PE waivers and educational plans after repeated directives from administration. She also failed to complete the Florida Virtual students' list. Sinclair's work was substandard. She could not perform basic routine counseling functions of the job, such as the scheduling of students.
Sinclair received a satisfactory performance rating in the Instructional Personnel Assessment System because Broward County Teachers Union contract prohibits any employee from getting less than a satisfactory without first being on a PDP. 2010-2011 School Year
Sinclair transferred to Northeast High School ("Northeast") for the 2010-2011 school year. She was assigned
the ninth grade and a third of the seniors, who were split between the three counselors.
Lupita Wiggins ("Wiggins") was Sinclair's guidance director at Northeast.
Before school started, Wiggins asked Sinclair if there were any areas she needed help with and Sinclair requested training in TERMS. Wiggins met with Sinclair at her home and went over TERMS with Sinclair. Wiggins also trained Sinclair about high school graduation requirements since Sinclair had previously worked in guidance at middle schools.
Sinclair did not show up to work the first two weeks of school. When she reported to work, Wiggins started noticing that Sinclair was having difficulty in scheduling.
In November 2010, Wiggins discovered Sinclair still had not moved the ESOL students from Mercier's class, which she should have completed near the beginning of the year.
On January 4, 2011, Wiggins reviewed the process for scheduling students properly with Sinclair again.
On January 21, 2011, Sinclair incorrectly scheduled Term 8 courses for Term 9.
Sinclair never mastered TERMS and continued to make mistakes such as: placing students in the wrong classes for the wrong quarters, which caused teachers' rosters to be missing students; placing a freshman student in a 10th grade biology
class; double booking a student; and placing a non-ESOL student in an ESOL writing class.
On January 21, 2011, Wiggins requested a list of ninth graders who had below a 2.0 GPA. Sinclair provided Wiggins a list of seniors who either had been in Apex3/ and were rejected or already scheduled for Apex.
Wiggins worked with Sinclair to try to help her understand how to schedule properly and spent over two hours explaining to Sinclair again how to look at the students' credits to determine the courses that they needed.
On January 25, 2011, Sinclair supplied another wrong class in Apex by not providing the classes for fourth or second period Apex classes.
On February 24, 2011, Sinclair made another scheduling error and the terms did not match up.
Sinclair also scheduled one student for American History as a needed graduation requirement, but removed her out of another class needed as a graduation requirement.
Wiggins sat down with Sinclair countless times to try to teach her how to schedule students properly. Sinclair continued to make huge errors.
On March 9, 2011, Sinclair improperly removed a student out of Spanish II, the second part of the two-year foreign language mandatory requirement to go to a four-year
university, and told the student she needed Geometry in the second semester for graduation. The student already had all of her credits for math.
On March 28, 2011, Sinclair still had not fixed the TERMS scheduling error brought to her attention by Wiggins on February 24, 2011.
Wiggins had to constantly go back and double-check and recheck Sinclair's work, as well as fix it or do it herself. Wiggins also received complaints from parents that Sinclair was being unprofessional and disrespectful.
2011-2012 School Year
In the 2011-2012 school year, Sinclair returned to Northeast where her performance issues continued. On or about August 26, 2011, Sinclair was notified of five ninth grade students who she did not place in the appropriate reading class, and Sinclair was instructed to correct the scheduling. Subsequently, Wiggins checked the five students' statuses and Sinclair had only changed one student's status, which was still an incorrect placement.
From September 12 to October 7, 2011, Wiggins reviewed Sinclair's senior letters. Thirty-five of them had erroneous information. One letter told a student he was on target for graduation and not on target at the same time. In another
letter Sinclair detailed a meeting with a student, who had withdrawn two weeks prior to the meeting date.
Sinclair continued to fail to perform her counseling duties. She was still unable to use TERMS, continued to improperly schedule classes for students, and could not evaluate transcripts. She even failed to assign students to core classes.
On or about November 29, 2011, Sinclair went out on FMLA through January 3, 2011. Alvarez noted in her doctor's note that she needed to rest.
Jonathan Williams became the principal at Northeast and decided to develop a PDP to address Sinclair's ineptitude. On April 24, 2012, Allan Thompson, assistant principal, notified Sinclair by memo that she had been absent since April 19, 2012, and he was unable to write her PDP. Therefore, the meeting was being rescheduled for April 30, 2012, "for the purpose of writing your PDP."
Sinclair did not return to work on April 9, 2012, as scheduled. Instead, Sinclair applied for a leave of absence. Principal Williams signed the request but noted that he was in the process of developing a PDP for Sinclair.
Sinclair's leave was approved and she was absent from April 9, 2012, through May 9, 2012.
Sinclair requested another hardship transfer to another school while out on leave. The transfer was denied.
A conference was scheduled with Sinclair to write the PDP on May 11, 2012, but at 7:00 p.m. on May 9, 2012, Sinclair wrote an email stating "due to illness, I will not be in until next week."
Sinclair never returned to work in time to write the PDP and she did not receive an evaluation for the 2011-2012 school year because of her days on leave: she did not meet the minimum requirements to get an evaluation.
2012-2013 School Year
Sinclair took personal leave for the 2012-2013 school year. Her request stated her reason was "to care for my 88 year old Aunt who is dependent on me for everything. She recently had a fall and is declining health."
Sinclair did not receive an evaluation rating for the 2012-2013 school year because she was not in attendance and/or actively teaching one day more than half of the school year, which is the minimum requirement to be evaluated.
2013-2014 School Year
In August 2013, Respondent came off leave from Northeast and was placed at Western High School ("Western") because an opening was available after a guidance counselor retired.
Principal Jimmy Arrojo ("Arrojo"), assigned her to the ninth grade students since she had previously been a guidance counselor over ninth grade students.
On August 7, 2013, Arrojo first met with Sinclair and treated the meeting as an entry interview trying to get to know Sinclair and transition her comfortably into her new position. Sinclair did inform Arrojo that she had previously been placed on a cycle of assistance. Arrojo explained to Sinclair that her job duties included counseling students, scheduling, reading transcripts, placement of students, dealing with problems that may occur, talking with parents, and setting up parent conferences.
During the initial meeting, Arrojo provided Sinclair a list of immediate assignments due August 16, 2013. He instructed Sinclair to find the incoming ninth graders at risk report, look up ninth grade graduation requirements, and review her job description and highlight any areas where she thought she might have issues.
Lauren Cohen ("Cohen"), Western's school counselor director, was Sinclair's supervisor assigned to guide Sinclair through guidance including registration, evaluating transcripts, and scheduling.
In October 2013, Cohen started receiving emails and phone calls from parents requesting a counselor change from
Sinclair. Parents would request verification of information Sinclair provided and other parents would report that Sinclair had not responded to them.
Mary Jones ("Jones"), assistant principal over the guidance department, also became concerned with Sinclair's performance as a guidance counselor because Sinclair generated numerous complaints from parents and was making mistakes.
Jones decided to provide Sinclair extra help to improve her work performance.
Sinclair made numerous scheduling errors, improper class placements, as well as calculated incorrect grades and credits for the students assigned to her. Sinclair's errors and failures exposed her students to graduation mishaps. Sinclair also had attendance issues and Arrojo had several informal conversations with Sinclair to help her improve her performance.
On December 19, 2013, a mid-year review meeting was held with Sinclair, Cohen and Jones. Sinclair's weaknesses with scheduling, including her inability to schedule students with TERMS, incorrect grades, discipline records, graduation requirements, and credits, were discussed with Sinclair during the meeting.
Sinclair's failure and inability to perform her duties continued into 2014. Sinclair was still providing incorrect
information to students, placing students in the wrong classes, and improperly evaluating transcripts.
The School Board evaluates employee's performances with the Broward Instructional Developments and Growth Evaluation ("BrIDGES") system. The School Board uses iObservation to maintain the observation data. BrIDGES is mutually agreed upon by the School Board and Broward Teachers Union. BrIDGES has an evaluation tool for guidance counselors in sections J through R, which evaluates their day-to-day interactions and responsibilities.
During evaluation observations, administrators record ratings based on numeric values that are averaged out based on the calculations that have been determined in the District. There are five different ratings based off of what is observed. Each rating has a numeric value. Innovating is worth 4 points, applying is worth 3 points, developing is worth 2.5 points, beginning is 2 points, and not using is 1 point. The points are averaged to come up with the Instructional Practice Score.
Jones was trained on BrIGDES and iObservations.
On February 22, 2014, Jones observed Sinclair's day to day activity. She also evaluated Sinclair's interaction with colleagues. Jones rated Sinclair beginning.
On March 11, 2014, Jones conducted a meeting observation of Sinclair with an incoming ninth grade
registration. During the meeting, instead of properly guiding the student and showing the student the course on the course card, Sinclair asked the student to find the course. Jones rated Sinclair beginning for the interaction since Sinclair did not demonstrate she knew how to map courses on the course card as she had been previously instructed and trained.
On April 7, 2014, Jones was dissatisfied with Sinclair's timing and methods used to communicate information skills and rated Sinclair with beginning in the category of promoting positive interactions with students and parents for a classroom incident. The rating was for a parent meeting Sinclair had. She interrupted the instructional flow of the classroom and put a teacher on the spot by calling her during class and questioning her about the student instead of taking a message and facilitating communication between teacher and parent later.
On or about April 9, 2014, Jones conducted a 30-minute formal observation of Sinclair's registration of a new ESE student. Sinclair showed up 30 minutes late to the scheduled conference and provided incorrect information about the course and credit. Jones rated Sinclair beginning for the observation because of the errors.
On May 1, 2014, Jones assessed Sinclair's evaluation category for collegiality and professionalism, domain 4, and
noted that Sinclair "identified ESE student and his needs during registration." She gave her a score of developing.
Sinclair's performance as a guidance counselor at Western went up and down. Sometimes she did what was needed to be done. And, more often than not she scheduled students inappropriately.
When Jones met with Sinclair to review issues, she would just stare at Jones and not provide an answer to her questions even if prompted and asked a direct question. Sinclair would reply with silence or reply "I don't recall."
After her observations for the 2013-2014 school year, Sinclair ended up with an Instructional Practice Score 2.335, which showed she needed improvement.
2014-2015 School Year
Sinclair started off the 2014-2015 school year needing to improve her Instructional Practice Score.
The District provides support for employees with performance concerns. Tanya Thompson ("Thompson"), evaluation coordinator for the District, was assigned to Western to coordinate support for employees that receive a less-than- effective annual evaluation. Thompson's job is to provide assistance in rectifying the employee's performance deficiencies.
Thompson started to assign Sinclair Nardia Corridon ("Corridon") as her fall peer reviewer to provide extra help and coaching, which would improve Sinclair's performance to the District level. However, Sinclair requested that she not get Corridon as her peer reviewer.
For the 2014-2015 school year, Cohen oversaw the guidance department and met with all the guidance counselors periodically to address processes and issues.
When Sinclair did not grasp the guidance counseling processes, Cohen started working one-on-one with her to explain and show her how each counseling duty should be done.
Thompson assigned Gisella Suarez ("Suarez"), to Sinclair from the District as her peer reviewer after Sinclair notified Thompson she did not want Corridon. Suarez was assigned to coach Sinclair and help enhance her job performance. She did not serve as part of the assessment procedure or evaluation process for Sinclair.
Even though Sinclair had a weekly peer reviewer, Cohen continued to provide Sinclair school-based support including extra meetings, and making sure that she sat down with her often to go over the different aspects of the counseling job including addressing parent concerns, following protocol for test materials, registering students, evaluating transcripts, scheduling, placing students, and Response to Intervention
("RtI).4/ Cohen documented her support meetings with Sinclair in coaching logs dated August 11, 13, 14, 22, 26, 28, 2014,
September 2, 5, 9, 2014, October 29, 2014, November 4, 2014, and
December 11, 12, 2014.
On August 22, 2014, Suarez started coaching Sinclair and also documented her training sessions by coaching logs each time she met with her.
When Sinclair met with Suarez, she shared her final evaluation from the previous year. Suarez used the evaluation to develop the session topics for coaching Sinclair. Suarez met with Sinclair weekly and focused her coaching sessions on all the areas of concern from Sinclair's evaluation.
Suarez coached Sinclair on areas such as: contacting and communicating with parents, teachers, and students; facilitating educational planning in her office; and using counseling technology to help look up data on students.
On or about August 28, 2014, Sinclair erroneously overrode the system and allowed a student to register for a higher math class because the parent wanted the student in the class. Sinclair should have verified that the class was appropriate by accessing the student's transcript or had the student tested before placing the student in a higher level math class.
During the coaching sessions, Suarez would provide Sinclair additional resources to look at or ask her to log on to a database or go to a website. Repeatedly Sinclair did not follow through with the assistance and would inform Suarez that she did not have time.
On or about August 31, 2014, the counselors were handling incoming registrations for private school transfers and middle school transfers prior to the start of the school year. Sinclair was not performing her share of registrations because she was not able to get into TERMS for a day and a half. Sinclair had to have her password reset. Jones rated her beginning for waiting a day and a half to gain access to the main working database, TERMS, and have access to check students schedules or appropriately place students.
On September 9, 2014, Cohen reviewed RtI with Sinclair and showed her the website for the prevention office and all resources. They reviewed the use of technology on iObservation. Cohen also instructed Sinclair not to blame other counselors when working as a team.
Cohen continued to receive numerous complaints about Sinclair not returning emails and phone calls to parents.
While observing Sinclair, Suarez would also provide her feedback and suggestions to improve her interactions when she met with parents. Sinclair was generally receptive.
However, Sinclair did not follow through with Suarez's suggestions.
Sinclair struggled remembering her password to access BASIS, the web based guidance counselors' database to obtain the information for students.
On October 6, 2014, Jones conducted a 30 minute formal observation during Sinclair's registration of a foreign student. Sinclair conversed with the student's uncle from the beginning of the meeting to the end about the student's registration without including or interacting with the student. Instead of letting the uncle convey the information to the niece and making her a part of the conversation, Sinclair repeatedly told the uncle, "you can talk to her about this tonight."
Jones ultimately interceded in the meeting and pulled up InfoCat, a database utilized to identify foreign speaking students, to pair the new student with a student on campus that spoke the same home language and help transition the student.
While coaching Sinclair, Suarez accessed Sinclair's skills with RtI and determined that she could not even go into the database even though she had been a counselor for over four years. Since Sinclair was responsible for RtI, Suarez provided Sinclair a Brainshark webinar from the District's counseling department to assist her in becoming proficient on RtI. The tool detailed the RtI process and included training on how to
get on the system, initiate referrals, maintain data on interventions, and how to input information.
On October 8, 2014, Suarez suggested that Sinclair register for the District RtI additional training. Sinclair attended the training.
On October 10, 2015, Suarez met with Sinclair and used her coaching period with her to view the Brainshark RtI webinar since Sinclair still had not viewed it on her own time although Suarez had suggested it previously. Suarez had to log on to Brainshark because Sinclair could not access it.
After the District RtI training and webinar training, Sinclair still struggled with RtI. She was still only able to get on RtI one time independently while with Suarez and continued to forget her password, although she would write her password down, and how to get on the system.
On October 27, 2015, Jones observed Sinclair performing domains 2 through 4 and rated Sinclair developing because she did what she was supposed to do.
On October 29, 2014, Cohen reviewed transcripts and test codes with Sinclair. Cohen met with Sinclair and went through the process and trained Sinclair again on how to enter grades and what assessment codes to use on a grade transcription sheet. When coaching Sinclair, Cohen had to repeat most topics multiple times.
On November 3, 2014, Suarez and Sinclair watched a BASIS webinar to improve Sinclair's performance with BASIS. Sinclair took notes.
Suarez also coached Sinclair on Virtual Counselor, a simple web-based program the District has where students, including middle school aged students, teachers and parents have access to student's grades and attendance. Sinclair also struggled with getting into Virtual Counselor and using the system.
On November 20, 2014, Jones decided that it was about halfway through the school year so she would conduct an informal observation to see how Sinclair was doing.
On December 11, 2014, Cohen met with Sinclair to review the previous assignment to put together a one page sheet with everything a ninth grader would need to know about semester grades including GPA, exams, and end-of-course classes ("EOC"). Sinclair's product did not contain the requested information and when asked to explain the document Sinclair could not explain it to Cohen. Cohen went over the components again and Sinclair took notes. Cohen ended the meeting by quizzing Sinclair.
Cohen asked Sinclair if a student passed the nine weeks but failed the exam would they get credit. Sinclair looked at Cohen and would not answer. After being asked three times, Sinclair said no, which was the wrong answer. Cohen explained that
Sinclair needed to learn, understand, and master how credits worked as part of her counseling job and she needed to be able to explain it to students properly.
On December 12, 2014, Jones and Derek Gordon had a meeting with Sinclair and provided her a summary memo informing her that there were concerns with her job performance and a possible professional growth plan would be implemented. Jones summarized Sinclair's performance of November 20, 2014, informal meeting in the memo. Jones also rated Sinclair as not using for area L; beginning for area M; and not using for area N. The Post Observation Summary memo which stated:
There was little interaction with parents during the parent meeting
Resources were not provided to the parents
No conclusions were drawn or action plan created following conference
Based on my observation, I am concerned about your performance. I stated that I would provide you with assistance in order to assist you in improving your performance. I also encouraged you to continue working with your Peer Reviewer, Ms. Suarez.
I also have had the opportunity to conduct observations this year. Based on those observations, a rating of beginning or not using have been given in the following elements:
Use of Available Technology
Participating in District and School Initiatives
Supporting and organizing the Physical Layout of the Session Room
Collecting and Analyzing Data to Develop and Implement Interventions Within a problem- Solving Framework
Know and understand that if these deficiencies are not remediated, you may need to be placed on a Performance Development Plan.
On December 12, 2014, Suarez also attempted to meet with Sinclair for their next weekly coaching session. Suarez's plan for the session was to review RtI again and to look at some technology resources for students. Sinclair did not respond
to Suarez while she was in the office and finally stood up and opened the door showing Suarez out after approximately
20 minutes. Suarez responded requesting a date for their next coaching meeting the following week. Sinclair informed her she would get back to her.
On January 8, 2015, Sinclair left Suarez a voicemail on her cellphone saying that she did not believe she needed her support any further.
On January 9, 2015, Jones provided Sinclair a January 14, 2015, meeting agenda which listed topics to be addressed at the meeting, including at risk students, failing ninth grade students, RtI, goal-setting with ninth graders, transcript evaluation, and appropriate placement for scheduling.
The email requested Sinclair to "please be sure to come prepared
with a list of ninth grade students who have failed the first semester."
On or about January 13, 2015, Arrojo met with Sinclair and addressed her attendance. He pointed out she had been absent 13 days and it was only halfway through the school year. He also informed her that she only had less than a day of sick leave left. Arrojo further explained that Sinclair had a pattern of non-attendance because most of the absences were tied to days off, a weekend or a vacation.5/
Arrojo questioned Sinclair about the absences four times and she did not respond or answer. Finally, Arrojo directed Sinclair to report to work on a daily basis and explained that Sinclair's numerous absences as guidance counselor caused problems for the guidance department because unlike a teacher who has a substitute replacement, the other guidance counselors had to pick up Sinclair's work when she was out.
On January 13, 2015, Jones also sent Sinclair an email rescheduling the meeting time for January 14, 2015, at 1:30 p.m.
On that same day, Sinclair incorrectly added classes for a student in Term 1 when it was second semester Term 2, and the student should have been added to Term 2. Each of the
student's classes Sinclair scheduled started with a "1" which represents Term 1 instead of "2", which represents Term 2.
On January 14, 2015, Sinclair reported to the meeting with the administrators at 1:30 p.m. and then excused herself to the restroom, came back at 1:45 p.m. and refused to answer any questions without a union representative. After she conferred with the union representative, the meeting began at 1:55 p.m.
At the meeting on January 14, 2015, Arrojo observed.
Jones requested that Sinclair provide the list of ninth grade at risk students that she had asked for previously on multiple occasions and instructed Sinclair to bring to the meeting for review. Sinclair refused to show the administrators the documentation she was holding in her hands or turn it over for review.
It was explained to Sinclair that an accurate compilation of at risk students is important in order to determine which students out of the approximate 800 freshmen need extra help to graduate because credits are lacking, a low GPA, attendance issues, or discipline issues.
Sinclair's previous reports on at risk students had varied from 21 to as large as 100. Jones had requested a copy of the list Sinclair was working off to review it for accuracy of criteria and properly identify the at risk students that needed plans formulated to help them.
Sinclair would not respond to Jones several requests for the list even after she asked her directly. Sinclair just stared at the administrators with no response.
Sinclair finally said 100 plus students were on the at risk list. Jones asked for the list a third time and Sinclair did not hand her the list. Jones asked Sinclair did she look on BASIS, the computer database that contains student data, including a tool that compiles list by areas at risk. Sinclair continued to stare blankly at Jones and not answer her. At some point in the meeting, Sinclair finally asked Jones, "does it matter what list?" Jones explained, "Yes, because on BASIS there's only 12 students and you're saying there's a hundred plus students."
During the meeting, Jones tried to get Sinclair to open BASIS to look up the list. Sinclair was never able to open BASIS.
Sinclair also failed to provide the strategies for at risk students or discuss interventions with Jones and Arrojo during the meeting. She just stared blankly at and through her supervisors.
Sinclair never produced the list. At the end of the meeting Arrojo requested Sinclair leave the list that was in her hand but Sinclair just walked out.
On January 14, 2015, Principal Arrojo also provided Sinclair a summary memo of the January 13, 2015, meeting and offered Sinclair employee assistance, which she refused. The memo provided expectations with the following directives:
You are expected to report to work on a daily basis. This is an excessive amount of absences that has had an adverse impact on the operation of our school be reminded that attendance is an essential function of your job.
All future absences will require you to provide a doctor's note verifying that you were ill. However, providing a doctor's note does not excuse an absence for which you have no accumulated sick leave.
In order to try to prevent any students from falling through the cracks, Jones personally took the time to create the at risk list and discovered only 15 students were on the failure at risk list, not the 100 Sinclair claimed.
On January 16, 2015, Sinclair received a pre- disciplinary meeting notice regarding insubordination. The letter detailed that Sinclair:
refused to adhere to My directive to provide the list of at risk and failing 9th grade students that I requested and you refused
to respond to inquiries regarding these students at a meeting held in Assistant Principal Ms. Missy Jones' office on January 14, 2015. During this pre- disciplinary meeting we will discuss your insubordination and failure to respond to inquiries regarding your students and your failure to turn in requested documentation.
Prior to being placed on PDP Sinclair was provided District based support to see if her deficiencies could be corrected and job duties could be performed at an acceptable level. She received counseling notes, meetings with the guidance director, peer reviewer, and assistant principal. However, Sinclair was still repeating mistakes, not grasping basic guidance functions, making errors and not making progress with all of the support given.
On January 23, 2015, Arrojo provided Sinclair a notice for a January 28, 2015, at 9:00 a.m. meeting "for the purpose of writing your Performance Development Plan."
On January 28, 2015, Sinclair reported to Western.
Arrojo was waiting for her in his office to meet and she left the school grounds around 8:00 a.m. Sinclair's union representative showed up for the meeting and was not aware Sinclair had left the school premises.
On January 28, 2015, a memo was provided to Sinclair from the pre-disciplinary meeting held on January 23, 2015, which stated:
[R]efused to respond to inquiries regarding your students and your refusal to turn in requested documentation, I have decided to issue you a Verbal Reprimand. Effective immediately, you are to fully answer all inquiries and you will provide an/all requested documentation from your supervising administrator/s.
That same day, Arrojo wrote Sinclair another meeting notice, which she ultimately refused to sign, directing Sinclair to report to his office February 2, 2015, at 1:00 p.m. for the purpose of writing her PDP. Sinclair called out on February 2, 2015.
On January 29, 2015, a transfer of support meeting was held. Sinclair requested Corridon to be her peer reviewer instead of Suarez because she had a guidance counselor background. Corridon met with Sinclair and discussed the areas of support needed.
On February 2, 2015, Arrojo wrote Sinclair a third meeting notice in an attempt to set up a meeting on February 5, 2015, at 12:30 p.m. for the purpose of writing her PDP.
On February 5, 2015, a PDP was created for Sinclair.
Sinclair was informed that her Instructional Practice Score was 1.898, in the unsatisfactory range. Sinclair was given
a 90-day probationary period letter, which stated "failure or refusal to remediate all areas identified as deficient would be less than effective BrIDGES evaluation and/or termination of contract."
The PDP highlighted Sinclair's performance concerns, which included but were not limited to the following: failing to systematically tract academic progress of students who were in danger of failing; inability to get participants to record
and represent the exchange of information from interactions with the counselor; inability to consistently access and utilize technology to enhance the quality of services; inability to develop or articulate interventions or providing counseling to develop effective behaviors; and failure to collect and analyze data to develop interventions with the RtI framework.
On February 6, 2015, Corridon, the second peer reviewer, started coaching Sinclair twice a week. She reviewed and provided assistance in all the areas Sinclair made an unsatisfactory rating on the PDP.
On February 9, 2015, Jones emailed Sinclair to instruct her to read Policy 6000.1, and a meeting would be set soon to discuss the policy.
Corridon spent coaching sessions going over and over the same areas of assistance with Sinclair. Sinclair would often forget her password, after writing it down. Corridon went over the RtI process manually and the next time Corridon reviewed it with Sinclair, Sinclair was not be able to follow through the RtI process independently. Sinclair did not demonstrate any consistency and there was not much effectiveness in terms of improvement with regards to performance.
After Sinclair was placed on PDP, observations continued to ascertain the status of her work performance and progress.
Jones observed Sinclair on March 5, 2015, March 8, 2015, March 30, 2015, April 9, 2015, May 1, 2015, and May 8, 2015. Arrojo observed Sinclair on March 3, 2015, March 9, 2015, March 19, 2015, and April 14, 2015. During the observations, Sinclair consistently continued to make numerous mistakes and rarely was capable of performing her job successfully.
As a guidance counselor, Sinclair had an office to work from, was provided the opportunity to attend regular guidance department meetings with the other guidance counselors, sit in on plan reviews, schedule reviews, and share other counselor information together.
Even so, Sinclair continued to commit constant errors repeatedly. She did not improve and her mistakes endangered the students' graduation timelines, college entrance opportunities, as well as scholarships. Additionally, she put undue strain on the guidance department by having the other guidance counselors in the department stop their workload, pick up Sinclair's work to get it done or correct her errors. Numerous scheduling and transcript errors had to be corrected by the other staff.
Sinclair showed minimal improvement and still could not put basic guidance counseling skills into practice. Instead, she repeated the errors even after extensive coaching and one-on-one training.
On March 4, 2015, Western had an incoming ninth grade open house. The event is for incoming freshman and their parents from the middle schools to come and learn about Western. Sinclair failed to show up even though she was required to attend and she did not contact any one to let them know she would not be in attendance. Other guidance counselors had to step in and handle Sinclair's table for incoming freshmen. Sinclair never provided an excuse for her absence. Prior to the open house, Arrojo had informed Sinclair that he would be introducing her to the 1000+ visitors at the event.
On March 8, 2015, Jones observed Sinclair and memorialized the observation in a post observation summary memo dated March 18, 2015. Sinclair provided 19 records for
11 students, of which only four were at risk, even though Jones had asked her yet again for the at risk students' list as she had been requesting since January. Sinclair was still not providing the at risk student list so that the intervention plans could be created and implemented to provide the services needed by the students. Jones also requested RtI records with the at risk list. The 19 records were all Sinclair supplied from August 2014 to March 8, 2015.
At some point, Sinclair said over 100 students were at risk but she only brought four at risk student records to the meeting of March 8, 2015, not the requested list. Sinclair had
very little documentation of her efforts to help the students. Sinclair also failed to be able to list or address the traits of Policy 6000.01 as requested on February 9, 2015. Additionally, when asked, Sinclair was unable to discuss quality points, the points provided for higher-level classes like AP that boost students GPA for graduation. Sinclair needed to comprehend and be able to explain quality points to parents and/or students to successfully perform her job.
Sinclair only contacted 20 students in December and 63 in January according to her log. Jones determined the number was low since December is only two school weeks. Out of
the 83 students contacted, Sinclair failed to address the need of improving one's GPA, which 520 of the ninth graders also needed her assistance with, as well as her providing them with information.
By email on March 9, 2015, Corridon scheduled Sinclair to go to Cooper City High School ("Cooper City") on March 16, 2015, at 9:00 a.m. to shadow Clara Able ("Able"), a guidance counselor, so she could observe her day-to-day activities and be taught more counseling skills.
On March 10, 2015, Jones emailed Sinclair and requested she provide additional documentation about some items discussed in the earlier March Policy 6000.1 meeting observation. Jones set a deadline of March 13, 2015. Jones
requested the information so that she could properly rate Sinclair from the observation. Jones informed Sinclair that she could provide her more time if she could not have the documents ready by the 13th as requested:
You mentioned that you call in students, call home to parents to provide tutoring information, etc. Please provide me with recent documentation that corroborates your outreach efforts. Examples of this could be L27 entries, list of targeted students, phone logs, examples of the tutoring services, etc.
You mentioned you shared the Quality Points information with parents/students who come to your office. Please provide documentation of who has received this information and what exactly you share with them.
At the meeting, Sinclair provided Jones incomplete L panels6/ and student sign in logs, which failed to have the sign out time for the students and incomplete. Out of the 18
contacts provided, Sinclair was only able to provide records for less than 10 students. The backup materials provided did not provide any details of discussions with students she had met with to utilize later for follow up or documentation.
Jones reminded Sinclair during the meeting that she was available to help her if needed and even though she was receiving assistance from site-based coaches and a peer reviewer, there were still on-going concerns regarding her performance.
By email on March 13, 2015, Jones scheduled a meeting with Sinclair on March 19, 2015. The email notified Sinclair that the meeting would cover RtI, student registration, and SBBC Policy 6000. The email instructed Sinclair, "As we will need to reference documentation on those topics during the meeting, the meeting will take place in your office. Please be ready to refer to items in your possession on the topics referenced above during our meeting."
On March 16, 2015, Sinclair showed up approximately an hour and forty minutes late for her shadow session with Able. By the time Sinclair arrived Able, had left Cooper City and Sinclair did not get the counseling training.
On March 17, 2015, Jones provided Sinclair a meeting notice to report to the principal's office on March 30, 2015, at 9:00 a.m. to review her PDP.
On March 18, 2015, Arrojo hand-delivered a summary memo to Sinclair from the March 13, 2015, meeting, which stated:
Middle school registration took place this week at Indian Ridge Middle School.
You came to the middle school with the incorrect course cards. You arrived and placed the Grade 10-12 Course Selection sheets (green cards) on the desk to register the incoming freshmen or current 8th graders. Ms. Cohen, Guidance Director, told you those were the incorrect forms and supplied the correct ones to you (blue cards). The next day, you again brought the incorrect Grade 10-
12 Course Selection sheets and placed them
on the desk for the incoming 9th grade students to use. Ms. Cohen, Guidance Director, again removed the forms from the desk and provided the correct ones for you.
You were unable to start a testing session for the group of students you were proctoring on March 11, 2015.
You were trained on protocols for testing administration on February 26th, 2015.
You were a Testing Administrator in a session previously held on March 2, 2015.
You reported to the computer-based testing session without your laptop on March 11, 2015. As Testing Administrator, your laptop was required in order to start the session and approve students to begin testing.
You were searching for a session code in the bin to begin computer-based testing, unaware that one had to be created once you log in as the Testing Administrator.
Ms. Cohen, Guidance Director had to log in as Testing Administrator for the session as you were unable to log in after multiple.
On March 19, 2015, Arrojo, Jones, and D. Jones observed Sinclair. She was incapable of explaining how a student earns a credit. She confused semesters with nine weeks and included the EOC calculation percentages when explaining the general course calculations. Sinclair also failed to explain how to utilize the forgiveness rule. Sinclair did not have an understanding of how to use the tool to help students make up credit and replace or forgive a student's original bad grade, which helps improve the GPA of the student who failed. Jones scored her beginning for the meeting.
During the meeting, Sinclair also displayed her typical responsive behavior to the administrator's questions. She stared blankly in response to pointed questions.
Sinclair never provided the RtI list, even though she had been over RtI during the 2013-2014 school year. Ultimately, Arrojo had D. Jones pull the list and D. Jones took over RtI because Sinclair was incapable of performing the task.
On March 20, 2015, Cohen met with Sinclair to follow up on the status of the transcripts that had been previously erroneously handled. Sinclair failed to have them corrected by the March 20, 2015, deadline. Cohen used the meeting to provide coaching on accurate future transcript evaluation. Cohen sat with Sinclair one-on-one and went through each folder and listed with her what needed to be done to award the students credit as well as provided examples. Cohen reminded Sinclair to indicate student name and student number, use designated colors to highlight grade level credit earned, and add appropriate assessment codes to EOC courses.
During the coaching session, Cohen also pointed out transcript and registration errors. One such error discussed was Sinclair awarding half of a credit to a student when Dade County clearly stated the student was in Term 1 or Quarter 1 and the student could not have earned a credit yet.
Cohen never received the requested transcripts.
Cohen suggested Sinclair check her drawers for the missing transcripts and Sinclair became upset. The transcript information was not available to be entered into the system and students were not properly placed or were in statuses to miss credits for graduation. The guidance department also had to request transcripts from prior schools a second time because of Sinclair not supplying the transcripts.
Sinclair's deficiencies in her performance as a guidance counselor continued almost on a daily basis.
On March 30, 2015, a meeting was held to review Sinclair's PDP. Sinclair's Instructional Practice Score had improved minimally to 2.043, needs improvement. The meeting ended with Arrojo agreeing to continue to provide Sinclair observations and coaching in an attempt to help Sinclair improve her work performance.
On April 2, 2015, a memo was written regarding the March 30, 2015, meeting outlining Sinclair's ongoing performance issues. The memo detailed the following observations:
During the observation, Ms. Sinclair could not identify students that she was the case manager for and therefore, unable to provide strategies for improvement.
Ms. Sinclair was able to log in to Virtual Counselor but was not familiar with the RtI layout in Virtual Counselor. During the observation, Ms. Sinclair continued to
click on the screen hoping to navigate through the website.
Mr. Sinclair was unable to describe how a student earn a credit. In speaking, Ms. Sinclair included the EOC calculation percentages while explaining the general course calculations.
On April 7, 2015, Jones conducted a formal observation meeting with Sinclair. A new student from a private school was being registered and enrolling as an incoming ninth grader. Sinclair showed up 15 minutes late without any explanation or apology for tardiness. Sinclair recommended four out of the six classes that were closed to the student. The four classes were all on the closed class list Sinclair had been provided both by a printed copy on April 6, 2015, and emailed on March 30, 2015.
After the registration observation, Jones asked Sinclair for the closed class list provided to her. Sinclair had it taped to her desk but she did not use it when registering the student. Jones asked Sinclair to tell her which classes she had recommended to the parent and she could not answer.
Sinclair also could not find the student's name in Virtual Counselor.
Sinclair's work continued to be unsatisfactory because she failed to competently perform her duties as a guidance counselor; failed to communicate appropriately with students, colleagues, administrators and parents, which caused
numerous complaints; stared and refused to acknowledge conversations with administrators; failed to have command of her area of specialization as guidance counselor with the repeated errors. Additionally, she made the same mistakes over and over and did not show improvement or competency.
On April 9, 2015, Corridon provided Sinclair's last coaching session.
In April, Jones was still trying to get the list from Sinclair of students who failed the first semester even though it was late in the year to start addressing the struggles of failing students.
On April 28, 2015, Jones conducted a formal observation and requested Sinclair go through the process of creating a referral in RtI. Sinclair was able to login to the referral database but clicked from screen to screen, unable to either navigate the database properly or record key information. Sinclair also failed to navigate resource sites necessary to provide students resources for assistance. Jones rated Sinclair a beginning for the exercise.
On May 1, 2015, a post observation conference was held with Sinclair to discuss the observation of April 22, 2015. Sinclair, David Olafson, and Jones attended. Jones shared the findings from the Marzano observation system, which Sinclair obtained beginning/not using datamarks in design question 2,
element 12 and elements M and Q. Specifically, Jones documented the following observations in the memo:
Lack of familiarity with the BASIS database when entering students and other pertinent information.
The counselor advises students to visit certain websites to begin to do better in school. The students receive no handout with key points or an overview of what the website offers.
The counselor does not diversity the resources offered to students in danger of failing and the do not address they students deficiencies.
Students in danger of failing were expected to create their own plan for success.
Some students have been in danger for failing all year and were not seen until April 2015.
On May 6, 2015, a meeting observation for domains 2 through 4 was conducted. Sinclair was asked to pull up the presentation she used for incoming freshmen to discuss graduation requirements. She was not able to find the document after multiple tries.
On May 8, 2015, a post observation conference was held to discuss the results of the 30-minute observation held on May 6, 2015. Jones outlined Sinclair's ongoing performance concerns and numerous errors, as well as improper actions, which included Sinclair: improperly inputting 21 out of 38 transcripts reviewed; failing to monitor and assist three students in danger of failing by only meeting with each of them
one time in April; failing to review the TERMS panels with each student along with Virtual Counselor; failing to assess the student's deficiencies incorrectly so was unable to offer additional services to the student, which impacted student's placement and graduation status; failing to look at two student's L panels to review their history and help develop the direction to proceed; and failing to provide services to a student who indicated problems at home.
That same day Jones notified Sinclair to report to the principal's office on May 15, 2015, for the final review of
PDP.
On May 15, 2015, Sinclair's final review was
conducted. She never was able to perform the basic functions of counseling. Sinclair failed to do the job and her ineptitude continued throughout the PDP process. Sinclair's final Instructional Practice Score was 1.974, unsatisfactory. As a result, Arrojo recommended Sinclair for termination based on her failure to correct her performance deficiencies during a 90-day PDP.
After Sinclair left Western, the missing transcripts Cohen had requested from Sinclair and instructed her to look for were found in Sinclair's office.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016).
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 Sinclair. McNeill v. Pinellas Cnty. Sch. Bd. 678 So. 2d 476, 477 (Fla. 2d
DCA 1996)("The School Board bears the burden of proving by a preponderance of the evidence, each element of the charged offense which may warrant dismissal.") Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of
Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990). "Preponderance of the evidence" is evidence that more likely than not tends to prove the proposition set forth by the proponent. Gross v.
Lyons, 763 So. 2d 276 (Fla. 2000).
This is a de novo proceeding for the purpose of
formulating agency action, and not to determine whether the School Board's decision was correct at the time that it made the decision. The findings of fact "shall be based exclusively on the evidence of record and on matters officially recognized."
§ 120.57(1)(j) and (k), Fla. Stat.
Sinclair is an instructional employee. § 1012.01 (2), Fla. Stat.
Section 1012.33(6)(a) provides that any member of the instructional staff "may be suspended or dismissed at any time during the term of the contract," but only "for just cause as provided in paragraph (1)(a)" of the statute, which provides:
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 or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
Petitioner charges Sinclair with seven counts in the Administrative Complaint and contends that Sinclair committed violations alleged in the administrative charges that constitute "just cause" for termination.
Count 1 Misconduct in Office
The undersigned will begin with Petitioner's charge that Respondent committed misconduct in office. The State Board of Education has adopted rule 6A-5.056(2), (2015) which as charged in the Administrative Complaint, Count 1 defines "misconduct in office" as:
"Misconduct in Office" means one or more of the following:
A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.;
A violation of the Principles of Professional Conduct for the Education
Profession in Florida as adopted in Rule 6A- 10.081, F.A.C.;
Rule 6A-10.080(2) entitled Code of Ethics of the Education Profession in Florida, provides in pertinent part:
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's Colleagues, of students, of parents, and of the other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
Rule 6A-10.081 is entitled Principles of Professional Conduct for the Education Profession in Florida. Petitioner charged section (2) of rule 6A-10.081, but quoted section (3) in the Administrative Complaint. Hence, the undersigned will determine if Sinclair committed a violation of rule 6A-10.081(3), which provides in pertinent part, that:
Obligation to the student requires the individual:
Shall 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.
Shall not unreasonably restrain a student from independent action in pursuit of learning.
* * *
(d) Shall not intentionally suppress or distort subject matter relevant to a student's academic program.
The record establishes that Sinclair's actions and inactions, as well as failure to perform the basic guidance counselor duties did not protect her students from conditions harmful to their learning in violation of rule 6A-10.081(3)(a).
Additionally, the evidence demonstrates that Sinclair's ineptitude and numerous mistakes of incorrectly scheduling students, incorrectly reading student transcripts, and not providing RtI services interfered with the students pursuit of learning in violation of rule 6A-10.081(3)(b).
On account of Sinclair violating rules 6A- 10.081(3)(a) and (b), she is guilty of Count 1, misconduct in office.
However, Petitioner's evidentiary presentation fell short in demonstrating Sinclair's ineptitude was intentional, that she was not striving for professional growth, or that she was not aware of the importance of maintaining the respect. Therefore, the Petitioner failed to meet its burden to show Sinclair violated either rule 6A-10.080(2), Code of Ethics, or rule 6A-10.081(3)(d).
Count 2 Misconduct in Office
The Administrative Complaint asserts in Count 2 that Sinclair violated rule 6A-5.056(2)(c)(d) and (e), (2015) which provides in pertinent part:
"Misconduct in Office" means one or more of the following:
* * *
A violation of the adopted school board rules;
Behavior that disrupts the student's learning environment; or
Behavior that reduces the teacher's ability or his or her colleagues' ability to effectively perform duties.
Petitioner has met its burden and demonstrated Sinclair's counseling methods interrupted the progress of students' learning environments when Sinclair placed students in the wrong classes and wrong terms, failed to identify at risk students, did not provide interventions needed, and did not provide students with counseling until over half the year was over. Additionally, Sinclair's inefficiency and numerous scheduling and transcript errors caused her colleagues to have to stop their work to both correct Sinclair's work and/or perform her duties in her stead. Such actions are violations of rules 6A-5.056(d) and (e). Therefore, by Sinclair violating the
aforementioned rules, Sinclair also committed a violation of rule 6A-5.056(2)(c).
Count 3 Incompetency
Rule 6A-5.056(3), (2015) defines incompetency and provides in pertinent part:
"Incompetency" means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.
"Inefficiency" means one or more of the following:
Failure to perform duties prescribed by law;
Failure to communicate appropriately with and relate to students;
Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents;
Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished; or
Excessive absences or tardiness.
"Incapacity" means one or more of the following:
Lack of emotional stability;
Lack of adequate physical ability;
Lack of general educational background; or
Lack of adequate command of his or her area of specialization.
Petitioner also met its burden and proved by a preponderance of the evidence that Sinclair was incapable of being a competent guidance counselor. The evidence taken as a whole, showed Sinclair had over seven years of guidance counselor experience, was provided repeated one-on-one trainings, and a year of peer review coaching, but failed to perform basic counseling duties. Sinclair's job performance was substandard and she lacked the ability and skills to proficiently conduct duties such as scheduling, RtI, placement, and evaluating transcripts. Instead, she committed numerous mistakes in her area of specialization. Additionally, the record shows Sinclair had numerous inappropriate interactions with her administrators when she chose not to respond to them when asked a question and/or stared through them when asked questions or given a directive. Accordingly, Sinclair's inefficiency and incapacity constitute a violations of rule 6A- 5.056(3)(a) and (b).
Count 4 Failure to Correct Performance Deficiencies
Petitioner also cited section 1012.34, entitled Personnel evaluation procedures and criteria as a basis of discipline and termination. This policy does not provide a substantive violation, but describes the procedure by which disciplinary matters are handled. This case has been handled in accordance with section 1012.34(4). Ultimately, Sinclair did
not correct her performance problems after being placed on a PDP and her last Instructional Practice Score was 1.974, unsatisfactory.
Count 5 and 6 Violation of Sections 1012.53(1) and (2)
Petitioner also alleges in Counts 5 and 6 that there is just cause to terminate Respondent's employment because Sinclair violated several provisions of the Duties of instructional personnel, which provides in pertinent part:
1012.53 Duties of instructional personnel.—
The primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role.
Members of the instructional staff of the public schools shall perform duties prescribed by rules of the District school board. The rules shall include, but are not limited to, rules relating to a teacher's duty to help students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully, using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the District school board.
The School Board demonstrated by clear and convincing credible evidence that in Sinclair's support role as a guidance
counselor she both hindered the students' progression to graduation and failed to prepare students for postsecondary education in violation of section 1012.53(1).
Sinclair also failed to perform her duties by not adequately keeping records. She both failed to properly fill out L panels and never provided the requested at risk list or transcripts. Hence, Sinclair also committed a violation of section 1012.53(2).
Count 7 Violation of School Board Policy 4008(B)
Petitioner charges Respondent with a violation of School Board Policy 4008(B) as Count 7 in the Administrative Complaint, which provides:
Respondent is in violation of School Board Policy 4008(B) which requires all employees who have been issued contracts to comply with the provisions of the Florida School Code, State Board Regulations and regulations and policies of the board.
Petitioner did prove by clear and convincing evidence that Sinclair's violation of rules 6A-5.056(2)(b), (c), (d) and (e), 6A-5.056(3), are violations of policy 4008(B)(8).
Therefore, Petitioner has proven Respondent committed acts as alleged in the Administrative Complaint that constitute just cause to suspend Sinclair without pay and terminate her.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order:
dismissing the charge of violation of rules 6A- 5.056(2)(a);
finding Respondent in violation of rule 6A-5.056(2)(b), (c), (d), and (e); rule 6A-5.056(3); sections 1012.33, 1012.53(1) and (2); and School Board Policy 4008(B).
upholding Respondent's suspension without pay and termination for just cause.
DONE AND ENTERED this 10th day of March, 2017, in Tallahassee, Leon County, Florida.
S
JUNE C. MCKINNEY
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 10th day of March, 2017.
ENDNOTES
1/ TERMS is a computer program used daily by every school district to store student information, including student schedules and transcripts. The program generates student schedules.
2/ At hearing, Sinclair contended that Lyons was harassing her, making her complete the PE waivers because the waivers were from the previous year. The undersigned rejects Sinclair’s reasoning for not completing the waivers. As Sinclair admitted, the PE waivers were a district requirement and she was provided plenty of time from August until January to complete all of them as a job assignment.
3/ Apex is an on-line credit recovery method for students. Students take courses on-line in the computer lab.
4/ Response to Intervention is a process where at risk students are identified and are referred for additional help or services according to the need.
5/ Sinclair’s absences were three days tied to Veterans Day, two days tied to Thanksgiving, and seven days missed before and after the winter break, as detailed in Petitioner’s Exhibits bate-stamped 760.
6/ L panels are panels located in the database where the intervention description for students is maintained.
COPIES FURNISHED:
Charles T. Whitelock, Esquire Charles T. Whitelock, P.A.
300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 (eServed)
Melissa C. Mihok, Esquire Melissa C. Mihok, P.A.
201 East Pine Street, Suite 445 Orlando, Florida 32801 (eServed)
Robert Runcie, Superintendent Broward County School Board
600 Southeast Third Avenue, Floor 10 Fort Lauderdale, Florida 33301-3125
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Pam Stewart
Commissioner of Education Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| May 09, 2017 | Agency Final Order | |
| Mar. 10, 2017 | Recommended Order | Petitioner met its burden by proving that just cause exists to terminate Respondent who committed misconduct in office and was incompetent as alleged in the Administrative Complaint. |
PAM STEWART, AS COMMISSIONER OF EDUCATION vs KEARY RYLAND, A/K/A KEARY WHITE, 15-003863TTS (2015)
BETTY CASTOR, AS COMMISSIONER OF EDUCATION vs CURTIS E. CLARKE, 15-003863TTS (2015)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs DENISE COOPER, 15-003863TTS (2015)
RICHARD CORCORAN, AS COMMISSIONER OF EDUCATION vs DIANE N. TIRADO, 15-003863TTS (2015)
DADE COUNTY SCHOOL BOARD vs GINETTE R. BA-CURRY, 15-003863TTS (2015)
