vs.
Case No. 17-6163TTS
Respondent.
Pursuant to notice, a hearing was conducted in this case on April 13, 2018, before Administrative Law Judge June C. McKinney of the Division of Administrative Hearings in West Palm Beach, Florida, pursuant to the authority set forth in sections 120.569 and 120.57(1), Florida Statutes (2018).
10 days without pay based upon the allegations made in its Administrative Complaint filed on November 8, 2017.
By letter dated September 19, 2017, Deborah Stark, ("Respondent" or "Stark") was notified that Palm Beach County School Board ("Petitioner" or "School Board") took action to suspend Respondent without pay for 10 days. The School Board charged Respondent by Administrative Complaint with violations of the following School Board policies: Failure to Fulfill the Responsibilities of a Teacher; Failure to Protect the Learning Environment; Misuse of Time/Attendance; Ethical Misconduct; Failure to Exercise Best Professional Judgment; and Insubordination: Failure to Follow Policy, Rules, Directive, or Statute.
Respondent timely elected to dispute the reasons for suspension and requested a hearing. Because she requested a formal proceeding, the matter was referred to the Division of Administrative Hearings ("DOAH"). A final hearing was originally scheduled on April 12 and 13, 2018. On April 6, 2018, Petitioner filed Petitioner's Motion for One Day Continuance, which the undersigned granted. The matter proceeded as rescheduled on April 13, 2018.
At hearing, the School Board presented the testimony of five witnesses: Nancy Patrick, Ed.D., human resource manager; Carolyn Seal, principal of Diamond View Elementary ("Diamond View"); Yanny Diaz, assistant principal of Diamond View; Marisel
Torres-Vega, community language facilitator at Diamond View; and Rachel Roche, single school culture coordinator at Diamond View. Petitioner's Exhibits 1 through 9 were admitted into evidence.
At the hearing, Respondent made no appearance and submitted no evidence.
The proceedings were recorded and transcribed. The one- volume Transcript of the final hearing was filed with DOAH on June 6, 2018. Petitioner filed a timely Proposed Recommended Order, which has been considered in the preparation of this Recommended Order. Respondent did not submit a proposed recommended order.
Unless specifically stated otherwise herein, all references to Florida Statutes and rules shall be to the 2017 codification.
Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the Palm Beach County Public School System. Art. IX, Fla. Const.; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat.
Stark was hired by the School Board in 2005. She is employed pursuant to a professional services contract with Petitioner.
At all relevant times to this case, Stark was a teacher at Diamond View. She taught second grade.
One of Stark's teaching responsibilities was to provide student information to the School Based Team ("SBT") such as conference/staffing notes,1 to assist the SBT in determining how best to support students who were having challenges or difficulties with reading.
During Stark's last several school years with the School Board, Stark engaged in a pattern of misconduct.
On June 1, 2015, Stark received, by hand delivery, her first written reprimand. She was disciplined for falsifying three memos by inappropriately using the School Board's letterhead and creating misleading and false documents under
co-workers' names without permission.
One problem area Respondent had was that she failed to keep her classroom organized and neat. Because of the disorganized book area and unkempt cluttered classroom, Respondent's classroom failed to be an environment conducive to learning and impacted the students' morale negatively.
On September 30, 2015, Principal Seal, by memorandum, addressed two of Stark's work deficiencies. Seal pointed out to Stark that her classroom management did not correspond with the School Wide Positive Behavior Support Plan and that Stark's
2014-2015 Reading Running Records ("RRR")2 were not accurately and properly administered.
Seal instructed Stark to sign up for a classroom management course through eLearning within a week and notify Seal of the enrollment. Seal even specifically suggested a two- day course that started on October 6, 2015, at the Pew Center.
Seal also outlined Stark's RRR inaccuracies and deficiencies in the September memo, which included Stark's failure to provide an accurate report on September 25th for a student during a scheduled SBT meeting, improper use of school materials as a benchmark, and writing in the teacher materials with student's information inappropriately. As a result of Stark's RRR shortcomings, Seal directed Stark to sign up for the next RRR training available on either October 13, 14, 23, or 24, 2015, through eLearning and instructed Stark to verify the RRR training enrollment. The memo ended with the following: "Failure to comply with these directives will be considered insubordination and may result [in] disciplinary action to include up to suspension or termination of employment."
On November 10, 2015, Seal specifically directed Stark to clean up her classroom and update her students' progress on the class bulletin board. Stark was provided a deadline of on or before November 24, 2015, to correct the performance deficiencies. Stark did not do so.
In December 2015, Stark still had student work posted from August and her classroom was not up to date.
On December 18, 2015, a pre-disciplinary meeting was held. In that meeting, Stark informed Seal that she went to training, but admitted that she did not provide the required documentation of attendance. Stark's performance with RRR had not improved.
By February 2016, Respondent had failed to comply with Seal's directives of November 10, 2015. Stark's classroom was unacceptable and had not been cleaned up, updated, organized as directed. The closet was cluttered from the floor to the ceiling with boxes, papers, and books. Additionally, Stark's student work bulletin board still was not changed and up to date.
On February 12, 2016, Seal met with Stark to address the issues and gave Stark a verbal reprimand with written notation. The verbal reprimand with written notation memo stated that Respondent was insubordinate for fail[ing] to comply with "directives given to her in the memorandums dated September 30, 2015, and November 10, 2015."
On May 24, 2016, a pre-determination meeting was held with Stark and she acknowledged that she had fallen behind in the RRR and math/reading assessments but planned to catch up by the end of the year.
On June 2, 2016, Seal held another disciplinary conference with Stark. Seal provided Stark a written reprimand by memo detailing that Stark exhibited:
poor judgement, lack of follow up, inappropriate supervision of students, excessive absence without pay, failure to properly and accurately administer and record Reading Running Records as well as Math and Reading assessments, during the school year 2015/2016 with fidelity and insubordination.
Seal also instructed Stark in the memo:
Effective immediately, you are directed to provide the appropriate level of supervision to your students, follow your academic schedule, meet deadlines with
respect to inputting reading and math date into EDW, accurately complete Running Reading Records, cease from taking unpaid time and follow all School Board Policies and State Statutes. Finally, pursuant to the CTA contract, I am directing you to provide a doctor's note for any absences going forward. This requirement will be in effect until December 22, 2016.
Respondent failed to follow the leave directive of
the written reprimand of June 2, 2016. Stark's duty day started at 7:50 a.m. On October 14, 2016, Stark notified Diamond View at 8:26 a.m. that she would not report to work because she had a ride to an appointment. On November 29, 2016, Stark notified the school at 7:40 a.m. by stating, "I have a meeting boo," as she took the full day off. On December 16, 2016, she notified the school at 6:24 a.m. that her husband requested a shopping day and family activities for the day. On February 10, 2017,
Stark notified the school at 7:38 a.m., "I am going to a friend's house today to help them." On March 2, 2017, she notified the school at 7:14 a.m. that "I am finalizing a college class today." On March 7, 2017, Stark notified the school at 6:18 a.m. that Nationals verses Boston were at the new park and she would not be in to work. On April 5, 2017, Stark notified the school at 7:34 a.m. that she had a meeting and missed half the school day.
Stark's absences of September 21, September 23, October 14, November 29, and December 16, 2016, were unauthorized leave and her leave of March 2, March 7, April 5, and February 10, 2017, were days without pay.
Stark's excessive absenteeism disrupted the learning environment for her students and caused Respondent to miss out on valuable School Board resources she needed to perform her job duties and correct her work performance deficiencies. By missing work, Stark was neither able to obtain the needed available professional development nor obtain support from the Literacy Staff Developer.
Stark's ineptness continued throughout the 2016-2017 school year. Stark failed to provide requested student information needed to assist in creating report cards for several former students, which adversely impacted the school and the students because, among other things, the school was not
able to provide the students' new teachers with accurate data for placement.
Stark was offered coaching services to improve her work performance through Peer Assistance Review ("PAR"). Stark failed to show up and meet with the trainers assigned to provide her support on January 20, February 1, and March 7, 2017.
Stark failed to submit the required SBT documentation for five students timely. Stark's duties included meeting with the parents of each student to communicate the students' academic concerns. Stark did not meet with the parents. Instead, Stark submitted five untimely falsified student records indicating parent meetings that did not take place. She also forged translator Torres-Vega signature like she was present at the meetings, when Torres-Vega had not participated.
On or about April 24, 2017, an investigation report was completed detailing Stark's misconduct for the 2016-2017 school year. The investigative summary concluded Stark failed to comply with numerous directives given by the principal and vice principal. Stark failed to complete and submit SBT documentation for five students who could have benefited from additional supportive services. Respondent falsified student records indicating she contacted and conferenced with the parents for each student. She also falsified that a translator had participated in the parent conferences. At the same time,
Stark sent last minute notification emails to the principal as to why she would not be reporting to work, failed to notify Seal in a timely manner when she would not be reporting to work, and did not prepare substitute lesson plans. Stark's unexcused absences totaled approximately 40 hours without pay within a five month period and did not adhere to the 24 hour advanced notice requirement of the Collective Bargaining Agreement.
Respondent's absences from work also caused her to miss valuable School Board training and support.
Ultimate Findings of Fact
Stark failed to fulfill the responsibilities of a teacher by not preparing and submitting the documents to the SBT so that the students could qualify for the support and services after multiple follow-ups and reminders by her supervisors.
Stark's actions of falsifying the five students' records with Torres-Vega's signature and indicating that she met with the parents when she did not was ethical misconduct, failure to exercise best professional judgment, failure to provide for accurate or timely record keeping, and falsifying records.
Stark misused her time and attendance when she had exhausted her paid time, but continued to use leave without pay when her work was not up to date and after she had been reprimanded and warned regarding absences by Seal. Stark's
explanation of her absences failed to fall in the category for extenuating circumstances and her absences disrupted the learning environment.
Stark was insubordinate and also failed to follow procedures, policies, and directives of the Diamond View principal and vice principal. Stark never cleaned up her classroom and failed to protect the learning environment. She also did not update her RRRs as instructed by Seal. On February 1, 2017, Vice Principal Diaz had also instructed Stark to always follow and adhere to an academic schedule with the students in order to provide structured learning. Instead, Stark continued to constantly allow the students to walk around the classroom, draw and eat snacks, without an academic schedule.
By letter dated September 19, 2017, Respondent was notified that the School Board was recommending she receive a
10 day suspension without pay because of her misconduct. On or about October 4, 2017, the School Board took action by voting to suspend Respondent for 10 days without pay. Petitioner ultimately filed charges against Stark by Administrative Complaint dated November 8, 2018, that alleged Stark violated the following School Board policies:
Failure to Fulfil the Responsibilities of a Teacher pursuant to School Board Policy 1.013(4), Responsibilities of School District Personnel and Staff; School Board
Policy 2.34, Records and Reports; Collective Bargaining Agreement with CTA, Article II,
Section U, Lesson Plans
Failure to Protect the Learning Environment pursuant to School Board
Policy 0.01(2)(3), Commitment to the Student, Principle I-(formally 0.01(2)(c); 6A- 10.081(2)(a)(1), F.A.C., Principles of Professional Conduct for the Education Profession
Misuse of Time/Attendance pursuant to School Board Policies 3.80(2)(c), Leave of Absence; Collective Bargaining Agreement with CTA, Article V, Leaves, Section B
Ethical Misconduct pursuant to School Board Policy 3.02(4)(b), (4)(d), (4)(f), (4)(h), and (4)(j), Code of Ethics; School Board Policy 3.02(5)(c)(iii), Code of Ethics; 6A-10.081(1)(c) and (2)(c)(1), F.A.C., Principles of Professional Conduct for the Education Profession in Florida
Failure to Exercise Best Professional Judgment pursuant to School Board Policy 3.02(4)(a), Code of Ethics; 6A-10-081(1)(b), F.A.C., Principles of Professional Conduct for the Education Profession in Florida
Insubordination: Failure to Follow Policy, Rules, Directive, or Statute pursuant to School Board Policy 3.10(6), Conditions of Employment with the District; School Board Policy 1.013(1), Responsibilities of School District Personnel and Staff.
Respondent contested the reasons for suspension.
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 (2018).
Section 1012.33(6)(a), Florida Statutes, provides that the teacher "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.
The burden of proof in this proceeding is on the School Board to prove by the preponderance of the evidence that just cause exists to suspend the employment of Stark. 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, 280 n.l (Fla. 2000).
In this matter, Petitioner has met its burden and demonstrated just cause by the preponderance of the evidence. The record is clear that Stark committed the following six violations as alleged in the Administrative Complaint:
DONE AND ENTERED this 25th day of July, 2018, in Tallahassee, Leon County, Florida.
JUNE C. MCKINNEY
Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2018.
1/ Conference/staffing notes memorialize conferences held between the teacher and the student's parent and include information such as date of conference, identification of the participants who attend the conference, and bear the signature of the parents.
2/ A Reading Running Record is the data that details the reading proficiency of a student for a specific grade level. The information includes a pupil progression plan and the level the student is performing. The data is utilized to determine how to group students into reading levels and determine if students need interventions. The teachers are responsible for keeping a workbook for each individual student. The data is kept in the Education Data Warehouse ("EDW") so if a child is transferred or graduates to another school, the new school has access to the information for proper placement.
Lisa Michelle Kohring, Esquire School Board of Palm Beach County Office of the General Counsel
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
Donald E. Fennoy II, Ed.D., Superintendent Palm Beach County School Board
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.
