STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 17-0728TTS

JENNIFER POTTS,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on June 14, 2017, in Bartow, Florida, before Administrative Law Judge Lynne Quimby-Pennock of the Division of Administrative Hearings (Division).

APPEARANCES

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

Boswell and Dunlap, LLP

245 South Central Avenue Bartow, Florida 33830

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A. Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

Whether Respondent Jennifer Pott’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).

PRELIMINARY STATEMENT

By letter dated December 14, 2016, the associate superintendent of the School Board notified Ms. Potts of the proposed recommendation to terminate Ms. Potts’ employment with the School Board. The allegations in the December 14th letter are summarized as followed:

On October 13, 2015 you received a Verbal Warning (Step I) for changing the Physical Education schedule without Administration’s approval, and not being on time to your scheduled classes. You received a Written Reprimand (Step II) on November 17, 2015 for failure to properly supervise your assigned students, which resulted in a student leaving campus before being located near the highway. On August 26, 2016 you were issued a Written Reprimand (Step II) as the result of repeated instances where you were late, or failed to show up, to your assigned classes. You also received a Verbal Warning (Step I) on

August 26, 2016 for bringing equipment on campus that is not approved for the student population at Karen Siegel, and could have resulted in injury to a student.

On October 17, 2016 it was reported to Principal Swindle that you were twenty (20) minutes late to an assigned class. When the teacher called to inquire as to your whereabouts, it was discovered that you had fallen asleep. The same day you admitted to a teacher that you had fallen asleep standing up on the playground while supervising students.

Based on these findings, it has been determined that your actions constitute serious misconduct and that there is “just cause” for your termination as a School Board employee.

Ms. Potts timely requested an administrative hearing to challenge the termination of her employment. By letter dated February 2, 2017, the case was forwarded to the Division for the assignment of an Administrative Law Judge to conduct a hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016). Following two unopposed motions for continuance, the hearing was rescheduled and heard as listed above.

At the final hearing, one joint exhibit, the Teacher Collective Bargaining Agreement 2013-2016 between the School Board of Polk County Florida and the Polk Education Association, Inc. (CBA), was admitted into evidence as Joint Exhibit 1. The School Board presented the testimony of Karen M. Siegel School (KMS) Principal Donna Swindle, and Elizabeth Wilson, a teacher at KMS. The School Board offered nine exhibits,1/ all of which were entered into evidence. Respondent testified on her own behalf and offered four exhibits, which were entered into evidence. All hearsay evidence was admitted subject to corroboration by competent, non-hearsay evidence. To the extent such hearsay was not corroborated, it will not be used as a basis for any finding herein.

The one-volume Transcript was filed on July 3, 2017, and a Notice of Filing was issued informing the parties that the “proposed orders . . . must be filed with the Division of Administrative Hearings on or before July 13, 2017.” Each party

timely filed its proposed recommended order (PRO). Each PRO has been duly considered in the preparation of this Recommended Order.

Unless specifically stated otherwise herein, all references to Florida Statutes shall be to the 2016 codification.

FINDINGS OF FACT

1. The School Board is duly-constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22 (1)(f), Fla. Stat.

2. Ms. Potts is employed by the School Board as a classroom teacher pursuant to a professional services contract. Ms. Potts is certified to teach exceptional student education (ESE)

   K through 12. After initially serving as a computer lab teacher, a first-grade reading coach and an algebra tutor, Ms. Potts took the certification test in physical education (PE) and passed it to teach PE. She has been employed with the School Board for approximately 15 years.

3. In accordance with the CBA, the School Board follows a progressive discipline program. Progressive discipline is generally recognized as the process of using increasingly severe

   
   

   measures when an employee fails to correct a problem after being given a reasonable opportunity to do so. The measures range from mild to severe, meaning they can be as simple as a verbal warning to correct conduct, to employment termination for repetitive conduct that endangers others.

4. Prior to the 2015-2016 school year, Ms. Potts worked for

   
   

   13 years as a successful PE teacher at Countywide School.

   
   

   Countywide School served students from kindergarten through high school with severe emotional and behavioral issues; however, these students did not have physical limitations and participated in traditional PE activities, unlike the KMS student population. There was no dispute that, at some point, Ms. Potts was “teacher of the year” at Countywide School.

5. At the end of the 2014-2015 school year, Countywide School was closed. Countywide teachers were “displaced” and assigned to other schools “just based on what human resources thought would be best for” the teachers. Principal Swindle used the phrase that Ms. Potts “was placed at our school, . . . after a school was dissolved in the district, and she came to us [KMS] that way.”

6. KMS is a Polk County educational institution serving the Pre-K through 22 years of age, significantly cognitively impaired or complex disabled individuals, meaning the students are intellectually disabled and have one or more physical

   
   

   disabilities. There are approximately 150 to 160 students on campus, and they require a high level of services and supervision. There are multiple professionals, including teachers, paraprofessionals, licensed practical nurses, a physical therapist, an occupational therapist, and a registered nurse on staff, to meet the educational, physical and other challenges of these students. KMS prides itself on maintaining the federal and state mandated teacher to student ratio of one to three, respectively.

7. Ms. Potts became the PE teacher at KMS at the beginning of the 2015-2016 school year. Prior to her KMS assignment,

   Ms. Potts had no experience in working with this student population, despite being an ESE certified teacher.

8. Ms. Potts had several different PE classes at KMS, and each one provided its own challenges. Some students were unable to communicate verbally. Some students were confined to wheelchairs while others had mobility enhancing devices.

   Ms. Potts was challenged to find physical activities that the students could participate in to be successful. Ms. Potts attempted to develop physical activities that would benefit the students, and she spent her own resources (time and money) trying to enhance the students’ PE environment. Ms. Potts tried to ensure that her curriculum was in line with the national standards for PE activities.

   
   

9. Ms. Potts’ class routine entailed securing the students (with the aid of one or two paraprofessionals depending on the class size) from their classroom, taking them to Ms. Potts’ classroom to prepare an activity, conducting the PE class using whatever equipment was necessary (either inside or outside as the weather and skills dictated), and then reversing the process to return the students to their next designated class, all within a 45-minute window. She then had five minutes to prepare for and begin the next class. In an effort to speed herself along, she used a skateboard, and then a bike to go between the classes. The skateboard and the bike were deemed inappropriate by the KMS administration and Ms. Potts stopped using them. She then jogged to classes.

10. Initially, Ms. Potts would set out the equipment for use in each class, but she was advised not to do so as KMS students might find the equipment and misuse it. Additionally, Ms. Potts could not use the same equipment for each class because of the students’ varying abilities. Some students were fully capable of hitting a ball on their own, and that class could use a real bat, while another class used a plastic bat. In an effort to provide her students with real activities, Ms. Potts even made a tennis racket out of folders for those with physical weaknesses.

    
    

11. In one class with students in the middle and high school age range, the students played ball. The game was described as “whoever hits it, gets it.” Ms. Potts played pitcher, a student stood in a spray-painted designated area, and the ball was pitched to that student. When the student hit the ball, the student dropped the bat, and the student who retrieved the ball would bat next. The ball game was successful, with staff members participating.

12. At some point, Ms. Potts supplied an aluminum bat to a PE class, and one particular male student had no difficulties in using it. When the class was over, all the equipment was put away, including the aluminum bat. At a later point, the student “pitched a fit” when he was not allowed to use the aluminum bat during recess, a period when Ms. Potts was not available to supervise its use. Ms. Potts was later informed that an aluminum bat was not appropriate for this student population as serious injury could ensue.

13. When Ms. Potts had PE for the students, their classroom teacher would have a scheduled planning period. If Ms. Potts was late in securing the students or failed to arrive for the PE class, the classroom teacher would have a very short planning period or would not have a planning period at all. It is undisputed that Ms. Potts was late in securing some students for their PE classes, and on, several occasions she failed to take

    
    

    the students for PE at all thus, depriving the classroom teachers of their scheduled planning period.

14. Ms. Potts readily admitted that she was late to classes because of the set-up/break-down times, and running to get students or returning them to class. She tried to make her schedule work, but was unsuccessful. Ms. Potts failed to adequately communicate the difficulties she was having in maintaining her PE schedule with the school administration.

    Termination Letter

    
    

15. On October 13, 2015, Ms. Potts was issued a verbal warning with written confirmation regarding her failure to maintain her PE class schedule and canceling a class without obtaining the requisite permission. Principal Swindle credibly testified that there was “trouble communicating” with Ms. Potts, and that canceling classes without Principal Swindle’s consultation was not the proper protocol at KMS.

16. A month later, in November 2015, Ms. Potts was issued a written reprimand following a conference with Principal Swindle involving a student eloping from Ms. Potts’ class. At some point, Principal Swindle became aware that a student was in the school parking lot. Principal Swindle rushed out, along with others, and found the student.

17. Ms. Potts credibly testified (and Principal Swindle confirmed) that this 10-year-old female (child) was known to

    
    

    leave class “about the same time” every day, and that she (Ms. Potts) and the two paraprofessionals were aware of the child’s elopement tendencies. On this particular day when the child left the class, Ms. Potts announced to the two paraprofessionals assisting her that she would handle the

    situation. Ms. Potts physically brought the child back to the PE class. Having brought the child back once, Ms. Potts’ attention was drawn to a second student who had gotten shut in the equipment storage area when the wind blew the door shut.

    Ms. Potts was assisting the second student and was unaware that the child had left the class for the second time in one day.

    When Ms. Potts became aware that the child had left for a second time, Ms. Potts began searching for her. As mentioned above, the child was returned from the school’s parking lot unharmed. No other first-hand accounts of this elopement were provided.

18. Nine months later, on August 26, 2016,2/ Ms. Potts was issued a verbal warning with written confirmation about the use of equipment. Principal Swindle attributed this warning to the aluminum bat issue referenced above. Ms. Potts admitted that she used an aluminum bat in a classroom setting under her supervision. Supervision does not lessen the possibility of an injury, but the bat appeared to be used in a controlled environment with a student capable of using it. Once advised that such equipment was unacceptable, the bat was not used again.

    
    

19. Additionally that same day, Ms. Potts was issued a written reprimand for being late or failing to show up for assigned classes. At that time, Principal Swindle spoke directly with Ms. Potts who admitted that she fell asleep during her lunch hour, and failed to timely attend a PE class. Further, Ms. Potts readily admitted this short-coming at the hearing.

20. Ms. Potts is a mother to four children and a dedicated teacher. Previously to her tenure at KMS, she worked successfully as a PE teacher at Countywide School. Upon her transfer to KMS she encountered a different student population, and although she attempted to meet the challenges associated with the students, she fell short. Ms. Potts did not grieve the disciplinary actions because she was attempting to move on to another school setting.

21. The CBA provides that prior to termination (step 4), there are three prior levels of discipline: verbal warning (step 1); written warning (step 2); and suspension (step 3). Although the School Board did not suspend Ms. Potts prior to issuing the termination letter, the progressive discipline provides for an exception to following the discipline “where the course of conduct or the severity of the offense justifies otherwise.”

22. The School Board has established that Ms. Potts was late to class, missed some classes almost entirely, used PE

    
    

    equipment that might not be appropriate for all students, and failed to adequately communicate with paraprofessionals in maintaining classroom security.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57(1), 120.65, and 1012.33, Fla. Stat.

24. The School Board is the duly-constituted governing body of the School District of Polk County. Art. IX, § 4, Fla. Const.; §§ 1001.30 and 1001.33, Fla. Stat. A district school board has the statutory authority to adopt rules governing personnel matters pursuant to sections 1001.42(5), 1012.22(1), and 1012.23.

25. In Florida, the district superintendent has the authority to make recommendations for dismissal of school board employees, and the school board has the authority to suspend school board instructional staff with professional service contracts, without pay, for “just cause.” §§ 1001.42(5), 1012.22(1)(f), and 1012.33(6)(a), Fla. Stat.3/

26. The School Board bears the burden to prove the charges against Ms. Potts by a preponderance of the evidence. Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA

    1990)(citing Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883

    
    

    (Fla. 3d DCA 1990)); McNeill v. Pinellas Cnty. Sch. Bd., 678 So.

    
    

    2d 476, 477 (Fla. 2d DCA 1976); § 120.57(1)(j), Fla. Stat.

    
    

27. The preponderance of the evidence standard requires proof by “the greater weight of the evidence” or evidence that “more likely than not” tends to prove a certain proposition. See

    Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000); see also Williams v. Eau Claire Pub. Sch., 397 F.3d 441, 446 (6th Cir.

    2005)(holding trial court properly defined the preponderance of the evidence standard as “such evidence as, when considered and compared with that opposed to it, has more convincing force and produces . . . [a] belief that what is sought to be proved is more likely true than not true.”).

28. Section 1012.33(1)(a) provides in pertinent part:

    
    

    [J]ust 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, two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under

    s. 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under

    s. 1012.34, 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.

    
    

29. Florida Administrative Code Rule 6A-5.056 provides in pertinent part:

    
    

    “Just cause” means cause that is legally sufficient. Each of the charges upon which just cause for a dismissal action against specified school personnel may be pursued are set forth in Sections 1012.33 and 1012.335,

    F.S. In fulfillment of these laws, the basis for each such charge is hereby defined:

    
    

    * * *

    
    

    1. “Misconduct in Office” means one or more of the following:

       
       

       * * *

       
       

       (e) Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties.

       
       

    2. “Incompetency” means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.

       
       

       1. “Inefficiency” means one or more of the following:

          
          

          1. Failure to perform duties prescribed by law;

             
             

          2. Failure to communicate appropriately with and relate to students;

             
             

          3. Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents;

             
             

          4. Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished; or

             
             

          5. Excessive absences or tardiness.

          
          

       2. “Incapacity” means one or more of the following:

    
    

    1. Lack of emotional stability;

       
       

    2. Lack of adequate physical ability;

       
       

    3. Lack of general educational background; or

       
       

    4. Lack of adequate command of his or her area of specialization.

    
    

30. The CBA provides the following with respect to “just cause” for disciplinary purposes:

    4.4 Just Cause: No teacher will be disciplined, reprimanded, suspended, terminated or otherwise deprived of fringe benefits or contractual rights during the term of his/her contract without just cause. No teacher shall be demoted from continuing contract/professional service contract to Annual Contract nor be deprived of his/her contractual salary for the remainder of the contract year without just cause. Any

    teacher terminated during the term of his/her contract shall be entitled to a fair hearing based on due process.

    
    

    4.4-1 Progressive discipline shall be followed, except in cases where the course of conduct or the severity of the offense justifies otherwise. Unusual circumstances may justify suspension with pay. Progressive discipline shall be administered in the following steps:

    
    

    1. verbal warning in a conference with the teacher, (A written confirmation of a verbal warning is not a written reprimand);

       
       

    2. dated written reprimand following a conference;

       
       

    3. suspension without pay for up to five days by the Superintendent and

       
       

    4. termination.

    
    

    “Letters of Concern” are not a form of discipline.

    
    

31. The greater weight of the evidence supports a finding that Ms. Potts’ actions were in violation of the statutes and rules governing conduct. The School Board has proven by a preponderance of evidence that it has just cause to discipline

Ms. Potts.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Potts’ employment.

DONE AND ENTERED this 25th day of July, 2017, in Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

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 25th day of July, 2017.

ENDNOTES

1/ Petitioner’s Exhibit 9 was the deposition testimony of KMS teacher Sharon Mason.

2/ This notice was provided on August 26, 2016, of the next school year. The school calendar was not addressed, and the undersigned is without knowledge as to when in the school’s calendar year this incident actually occurred.

3/ Neither party addressed the issue that the letter recommending employment termination was executed by someone other than the School Board’s superintendent. Therefore, the undersigned finds that both parties waived the requirement found in section 1012.335(4), which provides in pertinent part:

SUSPENSION OR DISMISSAL OF INSTRUCTIONAL PERSONNEL ON ANNUAL CONTRACT.—Any

instructional personnel with an annual contract may be suspended or dismissed at any time during the term of the contract for just cause as provided in subsection (5).

The district school board shall notify the employee in writing whenever charges are made and may suspend such person without pay

. . . . A majority-vote of the membership of the district school board shall be required to sustain the district school superintendent’s recommendation. The district school board’s determination is final as to the sufficiency or insufficiency of the grounds for suspension without pay or dismissal. Any such decision adverse to the employee may be appealed by the employee pursuant to s. 120.68. (Emphasis added).

COPIES FURNISHED:

Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 (eServed)

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

245 South Central Avenue Bartow, Florida 33830 (eServed)

Jacqueline M. Byrd, Superintendent Polk County School Board

Post Office Box 391 Bartow, Florida 33831

Pam Stewart, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

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.

Docket for Case No: 17-000728TTS

Orders for Case No: 17-000728TTS