The Issue The issue is whether Petitioner, Manatee County School Board, had just cause to terminate Respondent's employment as a teacher.
Findings Of Fact The Parties Respondent has been employed as a teacher by the School Board since August 15, 1995. As a member of the School Board's instructional staff, Respondent's employment is subject to Section 1012.33, Florida Statutes (2008),1 which provides that her employment will not be terminated except for just cause. The School Board is a constitutional entity charged with the duty to operate, control, and supervise the public schools within the School District. Exceptional Student Education Exceptional Student Education covers a range of students who have individual needs that must be addressed by a specific plan for education, called an Individual Education Plan. The drafting and maintenance of IEPs is governed by federal and state law. The government may complete audits of district ESE records from time to time, although audits are not completed every year. However, the School District self-reports ESE compliance issues to the government. IEPs are valid for one year and must be rewritten annually, although not necessarily coinciding with the beginning of each school year. Generally, a draft form of the IEP is prepared and taken to an IEP meeting to be reviewed by individuals who are involved with the student's education ("IEP team"), including ESE teachers, regular education teachers, guidance counselors, and parents. Although everyone who is directly involved with the student's education is invited to the IEP meeting, it is not necessary that each individual attend for the IEP to be valid. For instance, if parents or service providers do not attend, the IEP is not invalid. All members of the IEP team attending the IEP meeting are required to sign a signature page indicating their attendance. The parents of the students are legally entitled to two notices of the IEP meeting, the first being at least ten days prior to the meeting. The notice can be written or verbal, but should be documented in the ESE file. Parents may waive their right to ten days' notice of the hearing. One person is assigned as the school's Local Education Agency (LEA). An LEA must be present at all IEP meetings which are required to ensure that ESE guidelines are followed. Students are required to be evaluated by service providers, such as speech-language pathologists, psychologists, social workers, and occupational therapists and to be re-evaluated every three years. The re-evaluation must be completed within three years from the calendar date of the earliest testing completed in the previous evaluation or re-evaluation. Each service provider is expected to review the file and to complete a re-evaluation. However, a re-evaluation is not required if the student's IEP team determines that such re-evaluation is not needed. Furthermore, re-evaluations are not required to draft an IEP. Prior to any testing, evaluation or re-evaluation of a student, the consent of the parent must be obtained. The consent forms are valid for one year after the parent's signature is obtained. Each student receiving ESE services should have a file which includes documentation, such as his/her IEP. Students who have more than one exceptionality (such as speech-language) will often have more than one file housed in the ESE office. Also, students who have been receiving ESE services for a long period of time often require more than one file folder to contain all of the documents. The School District obtains funds from the government based upon the ESE status of the students in the district. Students who receive ESE services are given more funding than students in regular classes. The funding is allocated on a per-student basis, and ESE students receive different levels of funding depending on the classification of their disabilities. In order to qualify for the funds, IEP and other relevant documents must be in compliance with certain guidelines referred to as FTE or "full time equivalent." There are two FTE periods during each school year wherein the ESE files must be compliant in order to obtain funds; the first one is in October and the second one is February. Respondent's Employment at Haile Middle School Respondent has been employed by the School Board as a teacher for 13 years. For the past several years, and at all times relevant to this proceeding, Respondent was an ESE teacher at Haile. In 2005-2006, after the preceding ESE department chair was transferred to another school, Janet Kerley, principal at Haile, asked Respondent if she would serve as the ESE department chair. Respondent accepted the job and had served continuously as ESE department chair until early February 2008. While serving as ESE chair, Respondent continued to work as an ESE teacher, and her position was designated as such by the School Board. As ESE department chair at Haile, Respondent received a stipend.2 In 2005-2006, when Respondent first became the ESE department chair, her work day was divided evenly between teaching her scheduled ESE classes and ESE department chair duties. Training for ESE Chair Position No special training was provided for Respondent to serve as ESE department chair. The School District assigned an ESE specialist to each secondary school, including Haile. The ESE specialist's role was to provide support to the ESE department chair. However, ESE specialists had no supervisory responsibilities for the ESE department chair. In the 2006-2007 school year, Emma Mileham, the ESE specialist assigned to Haile that year, gave Respondent a checklist titled, "ESE Department Chair Responsibilities." She also distributed "monthly mind joggers," titled, "ESE Teacher Activities." The checklist of the department chair's responsibilities included reviewing ESE files. During the 2007-2008 school year, Amy Lloyd, the ESE specialist assigned to Haile, interacted with Respondent once a week as part of the school's Child Study Team. However, Lloyd did not provide any list of job responsibilities to Respondent. Kerley evaluated Respondent's work performance in the past and found her work to be satisfactory. Prior to the allegations that gave rise to this action, Kerley never perceived deficiencies in Respondent's ability to maintain the ESE files. During Respondent's 13-year tenure as a teacher in the School District, she has consistently received satisfactory evaluations and has never been the subject of a disciplinary matter. Changes Impacting ESE Department in 2007-2008 Jerry Hernandez was appointed as the assistant principal at Haile for the 2007-2008 school year. Kerley designated Hernandez as the school's ESE administrator. As ESE administrator, Hernandez was responsible for ensuring compliance with FTE requirements, implementation of IEPs, and monitoring the ESE department chair. In the 2007-2008 school year, two changes were implemented which impacted the ESE Department at Haile and those working in that area. First, as part of an overall change implemented by the School District, ESE teachers at Haile were required to use a new computer system for creating ESE documents (i.e., IEPs, notices, consent forms, etc.). Second, there were significant changes in job responsibilities of the ESE department chair at Haile implemented at the school level. Computer System Changes Prior to the 2007-2008 school year, Haile was using a software program called Dynamo to assist in the maintenance of ESE files. Dynamo was primarily based upon the use of "hard copies" of relevant documents and was limited to each user's computer. At the end of the 2006-2007 school year, Haile switched from the Dynamo software to a web-based program called the A3 system ("A3"). The main difference between Dynamo and A3 was that A3, as a web-based program, allowed individuals to view relevant documents from any computer by logging into the system. After Haile switched from Dynamo to A3, the teachers and service providers were encouraged to input all previous IEPs drafted in Dynamo into the A3 system. In fact, after the School District switched to the A3 system, there was a "push" by administrators to have all IEPs inputted into A3. To accomplish this, Respondent typed IEPs drafted in Dynamo and those received from other states into the A3 system verbatim, so that teachers and other individuals would have access to the information from their computers. Also, other Haile employees, including ESE teachers Athena Jantzen and Alice Moreland, and speech-language pathologist, Marie Bryant-Jones, input Dynamo IEPs into the A3 system. At the end of the 2006-2007 school year, the speech- language pathologist then assigned to Haile, Bryant-Jones, input goals for each student who received speech services into the A3 system. The next speech-language pathologist was free to revise the goals as she saw fit. The fact that Respondent and ESE teachers were inputting IEPs originally drafted in Dynamo into the A3 system was common knowledge at Haile. The School District provided training in the A3 system for ESE teachers at or near the end of the 2006-2007 school year. Additionally, on March 20, 2007, a district-sponsored one-on-one training was offered to the staff of Haile. Respondent attended that session and the training staff spent that day reviewing and/or explaining the A3 system. The training staff also worked with and helped Respondent input the current IEPs in the A3 system in order "to speed up the process." To start a new IEP in A3, the user is required to click on "Copy IEP" on the computer page. Clicking "Copy IEP" makes an identical copy of the last IEP in the system, including goals and objectives for other information about the student. The dates for the previous IEP remains the same until the user manually changes the date. This copy is a "draft" which becomes the new IEP when the modified or updated information is input into the A3 system. ESE Department Chair Changes in Responsibilities in October 2007 Prior to October 2007, ESE teachers at Haile were responsible for the ESE files of the students they taught, and each ESE teacher drafted the IEPs for their students. In October 2007, Hernandez told Respondent that as the department chair, she was now to assume responsibility for all of the ESE files at Haile. Hernandez explained to Respondent that this change was being made because the ESE teachers had complained to him that they could not, or no longer wanted to, take care of the ESE files and to teach their classes. When Hernandez told Respondent that she was now responsible for maintaining all of the ESE files, Respondent informed Hernandez that she was not happy about that added responsibility. In response, Hernandez told Respondent not to worry about the files, indicating that they (the files) would "take care of themselves." Hernandez than told Respondent that she should concentrate on giving as much support to the teachers as possible. In October 2007, when Hernandez assigned Respondent the responsibility for maintenance of all ESE files, there were approximately 170 ESE files that needed to be maintained in compliance with FTE guidelines. Except for the foregoing, Hernandez never specifically informed Respondent of what her new duties were as ESE department chair. In October 2007, after being given the responsibility for all ESE files, Respondent drafted IEPs into the A3 system for students she did not have in class by getting feedback from the students' teachers and reviewing the students' progress reports. One ESE teacher at Haile, Athena Jantzen, continued to draft some of her own students' IEPs, as Respondent was overloaded with work. Service providers, such as speech-language pathologists and psychologists, were still expected to draft and enter their own goals into the A3 system. If a student received only speech services, the speech-language pathologist was responsible for drafting the student's IEP and maintaining the file. After being assigned the responsibility for all the ESE files, Respondent asked the ESE clerk to print copies of various active IEPs from A3. Respondent requested the copies so that a copy of the student's IEP could be included in each file related to that student. The IEPs and related documents were printed from the A3 system, not photocopied, and reflected a print date of October 17, 2007, on the top of each page. The executed signature pages of the IEP which could not be printed from A3, were not photocopied by the ESE clerk and were not included in each file. After being assigned the responsibility for all the ESE files, Respondent continued to teach her assigned ESE class and perform cafeteria duty on a daily basis. Respondent was also pulled almost weekly from her department chair responsibilities to cover additional classes. Responsibilities Related to ESE Compliance Issues As chairperson for the ESE Department, Respondent was charged with the maintenance and oversight of IEPs. At Haile, the guidance counselor is designated as the school's LEA. At Haile, the registrar was designated by the school administration to set up IEP and revision meetings. The ESE clerk, who worked at Haile one day a week, was assigned to mail out the notices of meetings to the parents. When students enrolled at Haile from another school, the registrar or guidance counselor would inform Respondent if the child required ESE services. Error Reports Respondent received an "error report" from the school's registrar almost weekly. The error report identified potential compliance issues with the ESE files, but did not represent a completely accurate accounting of the files. For example, it would not identify compliance issues, such as a missing signature page for an otherwise valid IEP. Respondent used the error report to ensure that IEPs were timely updated and reviews for re-evaluations were timely initiated. Hernandez, as ESE administrator, received an "error report" about three times a year. Error reports were available to service providers who requested them. These error reports were obtained and used by some service providers to determine when the re-evaluations for which they were responsible were due. Systems to Notify Service Providers of Re-Evaluation Dates While ESE department chair, Respondent used the following three different systems to notify and/or remind service providers when students needed to be re-evaluated: (1) the "white board" system; (2) the "file drawer" system; and (3) the "binder" system. At some point prior to the 2007-2008 school year, Respondent used the "white board" system. Under that system, Respondent listed the names of students whose re-evaluation date was approaching and the due date of the re-evaluation on a "white board" that was located in the ESE office. Respondent updated the "white board" monthly. In the 2007-2008 school year, Respondent used the "file drawer" and "binder" systems to notify service providers of upcoming re-evaluation dates. The "file drawer" system consisted of placing all files that needed to be reviewed and/or files of students who were ready for testing in a file drawer designated and labeled for that specific category. In the case of a file review, Respondent would initiate the file review and then put the ESE file in a drawer labeled, "File Review." The service providers would simply go to the drawer and pull out student files to complete their review. Once the file review was completed and the student was ready for testing, the ESE file would be placed in the re-evaluation and/or evaluation drawer. At the beginning of the 2007-2008 school year, Respondent informed all of the service providers assigned to Haile of the "file drawer" system. Among the service providers Respondent informed about the "file drawer" system were Krista Cournoyer, a school psychologist, and Julia Caldwell, a speech- language pathologist. Respondent specifically explained the use of the file drawers to them, because this was their first year working at Haile. The "file drawer" system is a typical system used by schools in the School District, but schools are not required to use that system. Instead, schools have the option of developing and using any system they choose. Early in the 2007-2008 school year and at all times relevant to this proceeding, the "binder" system was initiated at Haile.3 Under that system, the names of students who required testing and re-evaluations were placed in a binder (notebook) in the ESE office. Respondent and Karen Ciemniecki, the ESE evaluator assigned to Haile, updated the information in the binder. The various service providers could utilize the information in the binder to determine which students they needed to test and/or re-evaluate. Service providers were free to use either the "file drawer" or "binder" system to determine when they were to review a file and re-evaluate a student. In addition to utilizing those systems, the service providers could also obtain an error report which would provide information concerning re-evaluations which were due the following month. Both the "file drawer" and the "binder" systems provided the service providers the means to determine when a review and re-evaluation was due, without the direct assistance of Respondent. During the 2007-2008 school year, several service providers, including Ciemniecki and Caldwell, used the "file drawer" and/or "binder" systems to determine when student file reviews, testing and re-evaluations were to be done. In addition to using the established systems, both Ciemniecki and Caldwell obtained error reports from either Respondent or Haile's registrar. Cournoyer, like the other service providers, was aware of the "file drawer" and "binder" systems and knew how to use them. Nonetheless, Cournoyer believed that the systems were inadequate and did not ensure that she would consistently know when the re-evaluations for which she was responsible were due. Although the systems in place were not perfect, if utilized, they provided a reasonable means to determine when reviews and re-evaluations were due. Moreover, the error reports, if obtained and used, provided an additional source by which service providers could determine about a month in advance when re-evaluations were due. There were times when there were files in the designated file drawer that Cournoyer needed to review. In those instances, Respondent removed those files from the drawer and handed them to Cournoyer, indicating that they needed to be reviewed. Events Leading to Investigation In January 2008, Cournoyer believed that it appeared that she was not completing re-evaluations in a timely manner. Cournoyer also believed that the reason for any delays in completing the re-evaluations was that she did not get all the requisite forms for those re-evaluations until they were overdue. On or about January 31, 2008, Cournoyer was conducting a file review for Student E.A. While reviewing the file, she noticed that an IEP meeting was conducted for this student on January 8, 2008. Upon reviewing the file, Cournoyer had two concerns. First, she had not been invited to that IEP meeting. Second, the documentation in the file indicated that the meeting occurred three weeks before Cournoyer was notified of the need to conduct a file review for this particular student. While reviewing the file of E.A., Cournoyer noticed that the student was receiving services from Caldwell, the speech-language pathologist. She then gave the file to Caldwell who, upon review of the file, noticed that the speech goals were already written on the student's active IEP. Caldwell was concerned that she had not written those goals, as it had been her intent to dismiss the student from speech-language services, and that she had not been invited to the IEP meeting. Caldwell discussed her concerns about the speech goals for E.A. with Respondent, who instructed her to set up a meeting to revise the IEP. Cournoyer shared her concerns about "overdue" re-evaluations in an email to Respondent, but disagreed that there was a system in place that addressed her concerns. Dissatisfied with Respondent's response to her email, Cournoyer then sent an email to members of Haile's Child Study Team, including Lloyd, the ESE specialist. After receiving a response from Lloyd, Cournoyer sent an email about her concerns to the Haile administrators, including Hernandez, and ESE staff on or about February 1, 2008. After receiving Cournoyer's email, Hernandez requested that she provide additional information about her allegations and concerns. In response to that request, Cournoyer provided Hernandez with a list of students and dates of re-evaluations that were overdue. On Sunday, February 3, 2008, Hernandez and Cournoyer met at Haile and reviewed the ESE files. During that review, they found some files that were missing signature pages and that one IEP appeared to have an altered date on a consent form. After conducting a preliminary investigation, Hernandez reported his findings to Principal Kerley who, in turn, contacted the School District's Office of Professional Standards ("OPS"). OPS then initiated an investigation of Respondent and the maintenance and formulation of the ESE files at Haile. Respondent was placed on administrative leave on February 5, 2008, before the February 2008 FTE cut-off date. During that leave, Respondent was prohibited from communicating with School District employees or entering the premises of Haile. Prior to being placed on administrative leave, Respondent was not informed of the allegations against her. The matter was assigned to Debra Horne, a specialist with OPS. After reviewing an email about the case from Hernandez, Horne decided to allow the ESE department to review the ESE files at Haile.4 On February 6, 2008, the ESE team, consisting of all the secondary ESE specialists and the ESE coordinator, Joe Roberts, conducted a preliminary review of the ESE files at Haile for compliance issues. That same day, Roberts memorialized the review team's preliminary findings in an email to the ESE director, Ron Russell. According to the email, the ESE team conducted a two-hour review of the ESE files and found about ten files with problems (i.e., missing signature pages, what appeared to be an altered consent form, and IEPs which appeared to be copied from previous year's IEPs). The email memorializing the findings noted that the ESE office was not organized and that "many folders and confidential information were spread out in varying locations of the office, not in a secured fashion." The email also noted that the team looked for "numerous folders [files] and could not locate them in the filing system."5 On February 29, 2009, Horne met with Roberts and Lloyd to review the ESE files and the ESE team's preliminary findings. Based on the review of the files, the OPS determined that 15 ESE files were non-compliant for FTE (funding) purposes and that another five ESE files had compliance issues that did not affect funding. On March 13, 2008, Horne interviewed Respondent about the findings of the ESE review team. The purpose of the interview, which lasted most of the day, was to allow Dozier the opportunity to offer an explanation of the alleged compliance issues concerning specific ESE files.6 Prior to the March 13, 2008, interview, school officials did not notify Respondent of the allegations or allow her to respond to those changes. After completing the investigation and interviewing Respondent, Horne published her findings in an investigative report. The findings in the OPS investigative report and which are the bases of the charges against Respondent in this case involve the non-compliant ESE files referenced above. Specifically, the investigative report found and determined that: (1) 15 ESE files were non-compliant for FTE or funding purposes; and (2) five ESE files had compliance issues that did not affect funding. As a result of the 15 non-compliant ESE files, the affected students were returned to basic funding, causing a decrease in the overall funds available to the School District. Nevertheless, those identified students were provided with services in accordance with their IEPs. Non-Compliant ESE Files Resulting in Loss of Funds Student A.C. The investigative report found that there was no signature page in the ESE file of A.C. for the April 10, 2007, IEP. Without a properly-executed signature page, the IEP is invalid. Respondent testified credibly that she did not know if she conducted the IEP meeting when the April 10, 2007, IEP was developed, but believed that A.C. may have had more than one file. This belief was based on the fact that A.C.'s primary disability was "language impairment," and A.C. received speech services. Typically, such students had two ESE files, one of which was kept by the speech-language pathologist. The April 10, 2007, IEP meeting was conducted during the previous school year and before Respondent was responsible for the maintenance of all ESE files at Haile. Respondent further testified credibly that she could have and intended to locate the signature page before the FTE window closed. Student J.B. The investigative report found that the ESE file of J.B. did not contain a signature page for the November 6, 2006, IEP. Without a properly executed signature page, the IEP is invalid. The November 6, 2006, IEP meeting was conducted during the previous school year and before Respondent was responsible for the maintenance of all ESE files at Haile. Moreover, there is no evidence that Respondent conducted or was present at this IEP meeting. Respondent testified credibly that she could have and intended to locate the signature page for the November 6, 2006, IEP before the FTE window closed. The investigative report found that a second IEP for J.B. indicated that it was drafted on January 25, 2008, but the registrar was informed it was drafted on October 23, 2007. However, there is nothing in the record to establish that the registrar made such a statement. Student Z.L. The investigative report found that the ESE file of Z.L. did not contain a signature page for the March 19, 2007, IEP. The IEP for Z.L. dated March 19, 2007, was drafted while Z.L. was attending Freedom Elementary School ("Freedom"), and, thus, was drafted by employees of Freedom. This IEP was valid through March 18, 2008. Freedom is a school in the School District, and the IEP developed at that school was apparently put in the A3 system. The March 19, 2007, IEP was printed on October 19, 2007, and was a copy of the IEP from Freedom dated March 19, 2007. Because the IEP printed in October 2007 was a copy of a valid IEP, no signature page was required. No determination was made as to whether the original March 19, 2007, IEP, with the fully executed signature page, was ever sent by Freedom to Haile. The signature page could not be printed from the A3 system. Therefore, unless the original or a photocopy of the fully executed signature page of the March 19, 2007, IEP had been sent to Haile, the school would not have the signature page. Student A.L. The investigative report found that there was no temporary IEP written for A.L. after the student transferred to the School District in September 4, 2007, from an out-of-state school. In September 2007, when A.L. enrolled at Haile, the student had a valid IEP from the out-of-state school district. The out-of-state IEP was for the period March 7, 2007, through March 6, 2008, if the student had remained in that state. Once the student was enrolled, the School District had six months from the student's enrollment date to develop a temporary IEP. Accordingly, a temporary IEP should have been developed on or before March 4, 2008. A temporary IEP was not developed for A.L. prior to or by March 4, 2008, or as of March 13, 2008, when Respondent was interviewed by Ms. Horne. Although the temporary IEP had not been developed prior to Respondent's being placed on leave, steps were being taken to develop the IEP prior to Respondent's being placed on leave. For example, Ciemniecki administered achievement tests to A.L. in late September 2007. Also, Cournoyer was reviewing the student's file and also testing the student. Respondent was placed on leave February 5, 2008, about one month before the temporary IEP was required to be developed. Thus, no conclusion can be reached as to whether Respondent would have taken the necessary steps to ensure that the temporary IEP was developed by March 4, 2008. On the other hand, it is equally apparent that after being placed on leave, Respondent was prevented from and could not take any steps to ensure that a temporary IEP was developed for A.L. Therefore, it can not be concluded that Respondent is responsible for the failure to timely develop a temporary IEP. The credible testimony of Respondent was that she intended to take steps to ensure that an IEP was drafted within six months of A.L.'s enrolling in the School District. An issue was raised regarding what appeared to be inconsistent dates on the Informed Notice and Consent for Evaluation/Re-evaluation ("Informed Notice and Consent") form. That form included spaces in which the following was to be provided: (1) the referral date; (2) the parent's signature, either giving or denying consent for the evaluation; and (3) the date of the signature. The referral date printed or typed on the form is February 26, 2006. The parent's signature, giving consent for the evaluation, was dated September 24, 2007. The concern expressed was that the date of the referral, February 26, 2006, was more than a year and a half prior to A.L. enrolling in the School District. This discrepancy was explained by the credible testimony of Respondent. According to that testimony, the above-referenced consent form was from the Dynamo computer system and had been used to make copies of blank forms to be used. However, the "referral date," February 26, 2006, had been printed or typed on the original form, and that date had been inadvertently left on the form prior to copies of the form being made. Student S.H. The investigative report concluded that S.H.'s IEP dated April 26, 2007, was invalid because it was created at Haile four or five months prior to the student's enrolling in the School District on September 5, 2007.7 The ESE file of S.H. contained a valid IEP dated April 26, 2007, that was drafted while the student was living out-of-state and enrolled in an out-of-state school. That IEP would have been valid through April 25, 2008, had the student remained in the out-of-state school district. In addition to the out-of-state IEP, the ESE file of S.H. also contained another IEP dated April 26, 2007, which indicated that, as of that date, the student was attending Haile. There was also a fully executed signature page for this April 26, 2007, IEP, which had been signed by the parent, Respondent, and six other individuals. In addition to the parent and Respondent, six others signed the signature page of that IEP. Contrary to the allegations, the IEP for S.H. created at Haile was not created on April 26, 2007, four months before the student enrolled in the School District. Respondent testified credibly that she input the data from the out-of-state IEP into the A3 system. However, while inputting information in A3 for the student's new IEP, she neglected to change the IEP plan date from April 26, 2007, to the new IEP plan date. The testimony of Respondent is supported by a careful review of contents of the IEP. For example, the IEP clearly indicates that the student is now enrolled at Haile as a "transfer [student] from out of state."8 The signature page of the Haile IEP also mistakenly shows that the IEP was developed on April 26, 2007. However, the upper right corner of that signature page indicates that the signature page form for S.H.'s Haile IEP was printed from the A3 system at 7:18 a.m., on October 29, 2007, almost two months after S.H. enrolled in the School District. As noted above, only blank signature page forms can be printed from A3. Therefore, the signatures had to be placed on the signature page some time after the form was printed. Respondent's failure to change the plan date of the student's out-of-state IEP to the plan date of the new IEP created at Haile, was due to human error. Student S.R. The investigative report found that S.R.'s ESE file did not contain an IEP, a notice of IEP meeting, or signature page. S.R.'s ESE file contained a valid IEP dated February 8, 2007, drafted while the student was at Gene Witt Elementary ("Witt"), a school in the School District. The IEP was drafted by employees at Witt and was valid through February 7, 2008. The file also contained an IEP with a plan date of February 7, 2008 (the same as the Witt IEP), indicating that the student was attending Haile at the time of the IEP. Respondent testified credibly that she typed the data contained in the Witt IEP, which was in the Dynamo System, into the A3 system so that the data would be available to other teachers. Respondent testified credibly that she had no intent to make it appear that S.R. was attending Haile in February 2007. Respondent further testified credibly that when an individual inputs data into the A3 system, the school that the individual is assigned to automatically "pop[s] up" in A3 as the student's school. The document included in the investigative report that is the basis for discipline against Respondent is a copy of S.R.'s IEP that was created at Witt dated February 8, 2007. That IEP was printed from A3 on October 19, 2007. Because the IEP is a copy of a valid IEP, no signature page was required. Likewise, no notice of the IEP meeting was required. No evidence was presented to establish that the notice and fully executed signature page of the subject IEP were ever received by Haile. Student E.M. The investigative report found that the ESE file of E.M. did not contain a signature page for the April 11, 2007, IEP, and, thus, the IEP was invalid. E.M.'s April 11, 2007, IEP notes that the student's primary exceptionality is "language impaired." During the March 2008 interview, Respondent informed the OPS investigator that she believed E.M., as a language-impaired student, had two ESE files, one of which was maintained by the speech-language pathologist.9 Respondent testified credibly that she could have and intended to locate the signature page or schedule another IEP meeting before the FTE window closed. The April 11, 2007, IEP was drafted during the previous school year and prior to Respondent becoming responsible for the maintenance of all ESE files at Haile. Student M.D. The investigative report found that the ESE file of M.D. did not contain a valid IEP. According to the report, Respondent gave a plan date of November 2, 2007, to the registrar, but failed to create an IEP on that date. On November 2, 2007, a parent conference was called and conducted by Ms. Moreland, a teacher at Haile. Respondent did not attend the parent conference, but about mid-meeting, Moreland went to Respondent's office. Moreland then told Respondent that the team originally intended to remove M.D. from mainstream classes, but during the parent conference decided against it. The November 2, 2007, date may have been incorrectly given to the registrar as the IEP plan date.10 However, the meeting conducted on that date was a parent conference, and unlike IEP plan dates, are not reported to the registrar. It is alleged that the report of the conference and IEP revision sheets were incomplete. However, as a result of the team's decision that M.D. services remain the same (he would remain in mainstream classes), there was no need for the partially completed revision form to be included in M.D.'s ESE file. Thus, Moreland should have discarded that form. M.D.'s ESE file included a valid IEP dated February 8, 2007. This IEP was valid through February 7, 2008. The short-term objectives from M.D.'s 2007 and 2008 IEPs were identical. The latter IEP was dated March 6, 2008, after Respondent was on administrative leave and Jantzen was interim department chair. Student E.R. The investigation found that E.R.'s sixth-grade IEP appeared to be copied "exactly" from the student's fifth-grade IEP. The concern was that the information copied from the fifth-grade IEP to the sixth-grade IEP did not accurately reflect an appropriate measurable annual goal in the area of math. The annual measurable goal on E.R.'s fifth-grade IEP and copied on the student's sixth-grade IEP was that the student "will satisfy fifth grade math requirements." However, during the investigation, it was established that the student was performing above the fifth-grade level in math at Haile. Thus, that previous math goal should have been changed.11 The fifth-grade IEP was developed on December 7, 2006, when E.R. was enrolled at Freedom Elementary School ("Freedom") and remained effective through December 6, 2007. E.R. was enrolled as a sixth-grader at Haile in the 2007-2008 school year. Therefore, the fifth-grade IEP was effective the first few months of E.R.'s sixth-grade year at Haile. Pursuant to the administration's instructions, after E.R. enrolled at Haile, Respondent input the information from the December 2006 IEP into A3.12 Although E.R. was in the sixth grade, the IEP was effective until December 6, 2007. The December 7, 2006, IEP, upon which the OPS refers, was printed on October 19, 2007, and is a copy of the IEP developed at Freedom, except that E.R.'s school and grade had been changed. The student's school was changed from "Freedom" to "Haile" and the current grade was changed from fifth to sixth.13 Respondent testified credibly that she did not know who changed the grade and school on E.R.'s December 2006 IEP. Moreover, no evidence was presented as to who made those changes. However, undoubtedly, on October 19, 2007, E.R. was enrolled at Haile and was in the sixth grade. Respondent testified credibly that in inputting E.R.'s December 7, 2006, IEP, developed at Freedom, into the A3 system, she did not intend to make it appear that E.R.'s December 7, 2006, IEP was developed at Haile. Student C.D. The investigative report found that Respondent gave the registrar an IEP plan date on January 30, 2008, but A3 indicated the meeting was held the following day. Having the IEP meeting on the following day would not necessarily be a violation.14 However, C.D.'s ESE file did not contain a notice of a January 30 or 31, 2008, IEP meeting, an IEP, or a signature page for either of those dates. If a meeting were held on either of those days, a notice of the meeting and a signature page should be in the file. C.D.'s ESE file contained a valid IEP dated February 5, 2007, that was valid through February 4, 2008. Respondent testified that she intended to draft another IEP and hold a meeting before the deadline, which would have brought the file into compliance with the FTE requirements. Notwithstanding Respondent's testimony, there was no indication that an IEP plan meeting had been scheduled on or before February 4, 2008, and that notices of such meeting had been sent to parents and other appropriate individuals. Unless an IEP plan meeting had been scheduled and properly noticed, regardless of Respondent's intent, an IEP could not have been developed on or before the February 5, 2007, IEP expired. Student J.D. The investigative report found that the goals from J.D.'s 2008 IEP are identical to the student's 2007 IEP, which was effective from January 26, 2007, through January 25, 2008, unless and until a new IEP was developed. A new IEP ("2008 IEP") was developed for J.D. on January 14, 2008, and was effective from that date until January 13, 2009. During her March 2008 interview with OPS, Respondent informed Horne that she was taught that the goals of a student who was not meeting with success could be carried over to the next year. Other district employees confirmed that it was common practice to carry over goals from one year to the next. J.D.'s 2007 IEP indicates that Jantzen was the contact person for the IEP and that Respondent was not invited to the IEP meeting. J.D.'s 2008 IEP indicates that Respondent was not invited to the IEP meeting. Jantzen signed the signature page of this IEP as the ESE teacher, and Nosal, Moreland, Edmonson, and J.D.'s parent also signed the page. Jantzen, the current ESE department chair at Haile, testified credibly that a student's goals could be carried over to the next year, if deemed appropriate. According to Jantzen, it would be proper to include a note on the IEP regarding the reason(s) why the goals were carried over. However, there is no indication that Jantzen did so in J.D.'s file. Student M.M. The investigative report found that M.M.'s IEP dated April 4, 2007, did not include an LEA signature. Respondent informed OPS that it was probably an oversight that the LEA failed to sign the signature page. Respondent testified credibly that she would not have held a meeting if an LEA was not present, and it was likely that she anticipated an LEA coming or that the LEA was in attendance, but failed to sign the sheet. Typically, in the School District, the ESE department chair is the designated LEA at his/her respective school. However, at Haile, the school's guidance counselor, not the ESE department chair, is the designated LEA. If and when the guidance counselor at Haile is unavailable to serve as LEA, other individuals at the school, including Respondent, as the ESE department chair, were authorized to act as LEA. The failure to obtain the signature of an LEA at the April 4, 2007, IEP meeting was an oversight. Respondent was at that meeting and signed the signature page as the ESE teacher/evaluator. In the absence of the guidance counselor or another person designated as LEA, Respondent could have signed as LEA in addition to signing as ESE teacher/evaluator. Respondent was not aware that the LEA had not signed the form until she (Respondent) was interviewed by OPS. If Respondent had become aware of the problem prior to being placed on administrative leave, she could have taken one of two steps to correct the situation before the FTE window closed. To correct the omission of the LEA signature, Respondent could have scheduled another IEP meeting if no LEA was present. According to Hernandez, corrective action could have been taken by having the LEA sign off after the meeting, if that person had attended the meeting, but forgot to sign.15 Due to her oversight, Respondent took no corrective action to obtain the signature of an LEA on M.M.'s IEP dated April 4, 2007. As a result of this oversight, the IEP was not compliant for the October 2007 or the February 2008 cut-off date. Student B.R.H. The investigative report found that B.R.H.'s IEP dated March 6, 2007, did not include an LEA signature. The effective period of that IEP was March 6, 2007, through March 5, 2008. Respondent signed the signature page of the March 6, 2007, IEP as the ESE teacher/evaluator. In addition to signing the signature page as the ESE teacher/evaluator, Respondent, as ESE department chair, also could have signed as LEA if the primary LEA representative was not at the meeting. The corrective action discussed in paragraph 148 could also have been taken if the LEA representative attended the meeting, but left without signing the signature page. Respondent was not aware of the omission of the LEA signature until it was called to her attention during the March 13, 2008, OPS interview. Had Respondent been aware of that omission prior to that time, she could have taken appropriate corrective action. Because Respondent was unaware of the situation prior to that time, no corrective action was taken prior to the October 2007 FTE cut-off date. Student J.G. The investigative report determined that the ESE file of J.G. could not be found. Despite that determination, it was not established when this student enrolled at Haile and/or if that student's ESE file was ever delivered to Haile. Moreover, at this proceeding no testimony or evidence was presented as to whether the ESE file was found after Respondent was placed on administrative leave. As ESE department chair, Respondent was responsible for maintaining the ESE files. However, in this instance, it is unknown when, and if, J.G. enrolled in Haile and/or if the student's file was ever delivered to the school. Assuming, though not finding it, that J.G's ESE file was at Haile, no evidence was presented that Respondent intentionally or otherwise concealed the file.16 The credible testimony of Respondent was that she did not conceal J.G.'s ESE file. Student B.M. The investigative report found that B.M.'s ESE file could not be found. It was not established that B.M. was a student at Haile, whether the student enrolled at Haile, or if B.M.'s ESE file was ever delivered to Haile. Also, no evidence was presented at the hearing as to whether the file was found since Respondent was placed on administrative leave. During the March 13, 2008, OPS interview, Respondent informed Horne that she did not know B.M. Also, Respondent testified credibly that she did not know B.M. and never saw B.M.'s ESE file. There was no evidence presented at the hearing that Respondent intentionally concealed the ESE file of B.M. or that the file was ever at Haile. Alleged Deficiencies Not Resulting in Loss of Funds Student E.A. The investigative report found that Respondent falsified an Informed Notice and Consent form for E.A. This finding was based on a comparison of two Informed Notice and Consent forms for E.A. Informed Notice and Consent forms: (1) advise parents that their child has been recommended for an evaluation, re-evaluation and/or file review; (2) indicate the types of assessments that may be used; (3) provide parents the option to either give or deny consent for the evaluation; and (4) provide a signature and date line for parents to complete. Informed Notice and Consent forms also provide spaces for information, such as the student's name, address, school, grade, and teacher's name ("identifying information"). On both of the Informed Notice and Consent forms for E.A., the identifying information had been written in the appropriate spaces, and the parent had signed and indicated that consent was given for the proposed evaluation. The two Informed Notice and Consent forms were different in several ways as set forth below. On the first Informed Notice and Consent form, someone had written in the student's grade as "6." The middle portion of the form, which describes the student's proposal for evaluation, was not completed. Finally, the parent's signature was on the form, but the "date" line next to his/her signature was not completed. On the second Informed Notice and Consent form: in the space for the student's grade, the number "8" was written over what appeared to be a "6," indicating that the student was in eighth grade, not sixth grade; (2) the middle portion relating to the proposal for evaluation had been completed; and (3) the date, April 23, 2007, previously not on the form, was written next to the parent's signature. The finding in the investigative report assumes that the first Informed Notice and Consent form (which was incomplete) was prepared and signed by the parent when E.A. was in the sixth grade, and the form was copied and modified when the student was in eighth grade. Those alleged modifications included changing the student's grade and inserting a date next to the parent's signature. Respondent testified that she may have changed the grade from "6" to "8" on the second form and did not know if she had added the date next to the parent's signature. While Respondent is not sure how the foregoing occurred or who did it, she explained that, with respect to the grade, it was possible that she wrote the "8" over the "6," because the grade had been initially entered incorrectly.17 According to the OPS report, during the March interview, Respondent advised the investigator that the file she (Respondent) was given to review was E.A.'s speech file and not the student's ESE file. Respondent told Horne during that interview that she was "almost certain that there was another consent form." At hearing, Respondent testified credibly that she believed that there was another consent form elsewhere.18 Based on the record, no determination can be made as to when the date next to the parent's signature was written on the Informed Notice and Consent form or who wrote that date.19 Based on the record, no determination can be made as to who or when E.A.'s grade level was changed from "6" to "8" or whether that change was made to correct an error.20 Student L.H. The investigative report found that the Informed Notice and Consent form for L.H. was falsified by Respondent. On the student's Informed Notice of Consent form, the date next to the parent's signature was January 25, 2008. The date of the parents' signature on that form appeared to have been changed to January 25, 2007. The investigative report found that the "8" in the year 2008 appeared to have been written over what seemed to have been a "7" in the year 2007. No evidence was presented to establish who wrote an "8" on the form, indicating that the form was signed by the parents on January 25, 2008. No evidence was presented as to when the parents actually signed the Informed Notice and Consent form. The credible testimony of Respondent was that she did not change the date on the consent form and did not know who had done so. Student B.H. It is alleged that the ESE file of B.H. did not contain a notice of an IEP meeting and should have since the student's current IEP was to expire on February 6, 2008. No evidence was presented to establish that Respondent directed or instructed the ESE assistant or registrar to send out notices of an IEP meeting for B.H. or that the notices were sent out. Respondent testified that she intended to make the file compliant by sending a notice to the parents before the deadline. Despite Respondent's intentions, unless a notice had been sent out prior to February 5, 2008, and unless she took extraordinary measures, the IEP plan meeting could not be convened and no IEP was developed for B.H. on or before February 6, 2008, when the student's IEP expired.21 Student A.T. The investigative report determined that the IEP for A.T. dated October 4, 2007, did not include a signature page. According to the investigative report, during the March 2008, interview with Respondent, the investigator "reviewed the concern for A.T." (no signature page for the October 2007 IEP). The investigator then advised Respondent that the School District could have lost funding, but the problem was caught in time, and an IEP meeting was held to obtain the signatures. Finally, the investigator told Respondent, "Please explain." Respondent answered by telling the investigator that she could not remember. The investigative report makes no mention of Horne providing any file of A.T.'s to Respondent during the above- described discussion. After the allegation related to the missing signature page was made and Respondent was placed on leave, a signature page for A.T.'s October 4, 2007, IEP, which included Respondent's signature, was found.22 Apparently, before the signature page for the October 4, 2007, IEP referenced in paragraph 189 was located and after Respondent was placed on leave, school officials completed two signature pages for that IEP. These signature pages were backdated to correct the "missing signature page" issue. Ultimate Findings The School Board lost funding due to 15 ESE files being non-compliant with applicable statutes and regulations. However, those non-compliant issues were the result of human errors, mistakes, omissions and oversights of those responsible for the files, including, but not limited to, Respondent. The record is void of any evidence that the ESE files' non-compliance issues were the result of Respondent’s committing intentional acts to falsify the ESE records and/or to misrepresent the facts relative to the ESE students. Finally, there is no evidence that the errors, mistakes, and omissions attributed to Respondent resulted from her intentionally or deliberately neglecting her duties and/or refusing to adhere to the directives of supervisors and/or applicable laws, regulations, and School Board policies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order: Finding Respondent, Annette D. Dozier, not guilty of the charges alleged in the Amended Administrative Complaint; and Reinstating Respondent with back pay and benefits. DONE AND ENTERED this 23rd day of December, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 23rd day of December, 2009.
The Issue Whether the Board refused to re-employ Ms. Smith as a teacher's aide for the 1985-1986 school year in retaliation for a Complaint that she filed with the Florida Commission on Human Relations in January, 1983?
Findings Of Fact Ms. Smith is a graduate of a high school in the Gadsden County School system. Ms. Smith successfully completed a business education course at Gadsden Vo-Tech after receiving her high school diploma. Ms. Smith was rated qualified to work as a teacher's aide in the Gadsden County School system by the Central Administration office in 1982 and in 1984. Ms. Smith was employed as a teacher's aide at Gretna Elementary School (hereinafter referred to as "Gretna") during the 1982-1983 school year. She began her employment at Gretna in October, 1982. Ms. Smith's immediate supervisor at Gretna during the first month of her employment was the Principal, Mr. Witt Campbell. Mr. Campbell left Gretna in November, 1982. For the remainder of the 1982-1983 school year, Ms. Smith's immediate supervisor was Rosa Barkley, who replaced Mr. Witt as Principal. Ms. Smith was pregnant during the 1982-1983 school year. On January 24, 1983, Ms. Smith became ill because of her pregnancy and had to go to the hospital. Ms. Smith did not return to Gretna during the remainder of the school year. On March 14, 1983, Ms. Barkley went to visit with Ms. Smith at her home. Ms. Smith told Ms. Barkley that she would return to work approximately two weeks after her baby was born. This meant that Ms. Smith would return after the start of the 1983-1984 school year. Ms. Barkley helped Ms. Smith request a leave of absence. This leave of absence was approved by the Board on March 29, 1983. In March, 1983, Ms. Barkley gave Ms. Smith a satisfactory rating on a Gadsden County Non-instructional Personnel Assessment form which was filed with the Board. Ms. Barkley gave Ms. Smith the benefit of the doubt in completing this form because Ms. Smith had been under Ms. Barkley's supervision only from November, 1982 to January, 1983. Ms. Barkley also recommended to the Superintendent that Ms. Smith be re-employed for the 1983-1984 school year. By letter dated June 17, 1983, Ms. Barkley asked the Superintendent to terminate Ms. Smith. Ms. Barkley made this request because she wanted to have an aide that would start the school year in August, 1983 and not in November, 1983, when Ms. Smith planned to return. Ms. Barkley indicated in the letter that Ms. Smith had been absent because of her pregnancy. The Superintendent, Mr. Bishop, decided to grant Ms. Barkley's request. The decision to terminate Ms. Smith was made by the Board and not by Ms. Barkley. Although the Superintendent generally relies heavily on the recommendation of a principal, the decision to terminate Ms. Smith was that of the Board. The Board, based upon the information it was provided, should have told Ms. Barkley, that a leave of absence, and not termination, was the proper remedy to Ms. Barkley's problem. By letter dated July 27, 1983, Ms. Smith was terminated by the Board. Ms. Smith filed a Complaint with the Florida Commission on Human Relations on January 19, 1984, alleging sex discrimination against Ms. Barkley. Upon the filing of the Complaint the Board investigated and decided that Ms. Smith should be rehired. The Board realized that it had caused the problem and not Ms. Barkley. Ms. Smith was offered the first teacher's aide position available. The position was at Chattahoochee Elementary School (hereinafter referred to as "Chattahoochee"). Ms. Smith accepted the position and began work at Chattahoochee in March, 1984. Ms. Smith worked with fourth grade Chapter 1 children (children who have been disadvantaged with regard to their educational opportunities). Ms. Martha Downs was her teacher. While at Chattahoochee, Ms. Smith had difficulty performing her duties as a teacher's aide. Her primary area of deficiency was in math. Mr. Corbin Scott, the Principal at Chattahoochee, attempted to help Ms. Smith by having Ms. Ella Ponder, a helping teacher, assist her. Although it was alleged that Ms. Smith was required to take a Criteria Reference Test normally taken by fourth graders, the evidence failed to support this allegation. Based upon Ms. Smith's poor performance, Mr. Corbin did not recommend that Ms. Smith be returned to Chattahoochee for the next school year. Although Ms. Smith admitted that she has some problems with math she failed to accept the fact that she was not adequately performing her duties as a teacher's aide. Instead, she believed that Mr. Corbin expected her to "teach" and that he was unfair when he did not recommend her continued employment at Chattahoochee for the next school year. Ms. Smith believed that the Complaint that she filed in January, 1984, affected the way that she was treated at Chattahoochee. This unfounded belief affected Ms. Smith's attitude while at Chattahoochee and later. The Board decided that the period of time that Ms. Smith was employed at Chattahoochee (March, 1984 to June, 1984) was too short. Therefore, in an effort to be fair with Ms. Smith and to settle the dispute with Ms. Smith, the Board decided to place Ms. Smith in another teacher's aide position for the 1984- 1985 school year. During the Summer of 1984, Ms. Smith and the Board settled the Complaint which Ms. Smith had filed in January, 1984. Pursuant to this settlement, Ms. Smith dismissed her Complaint for back-pay and her re-employment at Gretna. Ms. Smith was employed at Gretna during the 1984- 1985 school year as a teacher's aide pursuant to the settlement. Ms. Barkley, Ms. Smith's immediate supervisor at Gretna, was not consulted before the Board decided to return Ms. Smith to Gretna. Principals of schools are not consulted by the Board before employees are assigned to their schools. Although Ms. Smith agreed to return to Gretna as part of the settlement of her Complaint against the Board, she believed that Ms. Barkley would not treat her properly. This belief, which was unfounded, affected Ms. Smith's attitude toward Ms. Barkley and her job during the 1984-1985 school year. Ms. Smith was assigned to assist two teachers for most of the 1984- 1985 school year at Gretna: Ms. Corine D. Palmer and Ms. Charlotte Price. Neither Ms. Palmer nor Ms. Price talked to Ms. Smith about problems which they perceived in Ms. Smith's performance. Ms. Price's attitude was that she was there to teach students and, therefore, she did not want to be bothered with Ms. Smith. Ms. Palmer's attitude was to work around Ms. Smith; she gave up trying to use Ms. Smith effectively because of Ms. Smith's lack of effort. Both ladies essentially stuck their heads in the sand and ignored the problem since neither of them were responsible for evaluating Ms. Smith. Employees at Gretna were required to sign in and sign out on a sheet provided for them at the administrative office of the school. During the school year Ms. Smith was late arriving at school a total of fifteen times. Most of those times she was late more than a few minutes. She was late seven times during 1984 and eight times in 1985. At least three other teachers' aides (Inez Morris, Ida Miller and Mary Wright) were late to school more often than Ms. Smith. While Ms. Smith received an unsatisfactory rating for punctuality for the school year, the other three aides received a satisfactory rating. Many of the times that the other three aides were late, they were late only a few minutes. When they were late more than a few minutes, they notified Ms. Barkley or someone else at Gretna that they would be late, and indicated why. Ms. Smith, on the other hand, did not always notify Ms. Barkley or anyone else that she would be late, or indicate why she was late until she was asked. During the first week of the 1984-1985 school year (August 20-24, 1984), Ms. Smith was late three times. Ms. Smith rode to school with another employee who was late getting to school. On August 27, 1984, Ms. Barkley discussed Ms. Smith's lateness with her and gave her a letter indicating that she was expected to be at school at 8:05 a.m. Ms. Smith was late once during each of the next three weeks. She corrected the problem, however, by arranging to ride with someone else. After the week of September 10-14, 1984, Ms. Smith was late only one other time during 1984. During 1985, Ms. Smith was late at least once a week during seven of the eleven weeks ending March 15, 1985. In addition to being late reporting to school, Ms. Smith was late going to her assigned classroom after arriving at school and after lunch. Ms. Smith was required to be in her morning class no later than 8:15 a.m. Her lateness was reported by Ms. Palmer and Ms. Price and was also noted by Ms. Barkley. Ms. Smith was in the employee lounge on many occasions when she should have been in a class. On October 15, 1984, Ms. Barkley spoke with all of the aides about being in the lounge in the morning when they should be in their classes. Despite Ms. Barkley's comments, that afternoon Ms. Smith was in the lounge when she should not have been, and she continued to be late to her assigned classroom in the mornings. Ms. Palmer and Ms. Price told Ms. Barkley that Ms. Smith was late to class. Both of them tended to do without her and to avoid any effort to try to correct the problem. On February 15, 1985, Ms. Barkley gave Ms. Smith a letter that indicated that Ms. Smith was in the lounge when she was not supposed to be. A similar letter was given to Ida Miller and Dorothy Smith. Ms. Miller and Ms. Dorothy Smith corrected the problem. Ms. Smith did not. Ms. Barkley rated Ms. Smith's attendance as "unsatisfactory". This rating was not based upon the number of days that she was absent. It was based upon the number of times that Ms. Smith was not in her assigned classroom. Ms. Barkley kept a notebook in which she noted the dates of some events involving employees' actions. She has kept these notes since she became a principal. Most of the notes concerning Ms. Smith did not give the reason for absences or lateness. Ms. Smith did not, however, always report the reason for her lateness. Most of the observations involved lateness and absences. The notes concerning Ms. Smith were provided to the Board because she was requested to provide any documentation concerning Ms. Smith. She did not know where her other notes were. Ms. Barkley noted the conference she had with Ms. Smith on August 27, 1984. In this note, she referred to Ms. Smith as "Ms. Attitude." This notation and a later notation that Ms. Smith was in the lounge one day "chomping" show a lack of judgment by Ms. Barkley in the manner that Ms. Barkley referred to Ms. Smith. This lack of judgment is not sufficient, however, to prove that Ms. Barkley terminated Ms. Smith at the end of the 1984-1985 school year in retaliation for the Complaint filed by Ms. Smith in 1983. Ms. Barkley's explanation for these notations is rejected. Ms. Barkley talked to teachers and other aides about Ms. Smith. Ms. Barkley did not, however, limit her inquiries to Ms. Smith. Ms. Barkley was responsible for the supervision of all of the employees at Gretna. She was very active in managing her school. She observed her employees in the halls of the school, in the lounge and in the classroom. She did not single out Ms. Smith. Ms. Barkley asked teachers and other aides about all employees and she checked up on all her employees. Ms. Smith was observed in class by Ms. Barkley. Ms. Smith was seen giving wrong answers and performing sloppy work. When Ms. Barkley talked to Ms. Smith about some of her problems, Ms. Smith's attitude was defensive. She did not believe that she had any problems and believed that Ms. Barkley was being unfair to her. She therefore did not indicate that she agreed with Ms. Barkley or that she would make any efforts to correct her problems when Ms. Barkley spoke to her about her problems. Ms. Price indicated that Ms. Smith had evidenced a poor attitude about her performance with her also. On March 15, 1985, Ms. Barkley met with Ms. Smith and informed her that she would not be recommended for employment during the 1985-1986 school year. Ms. Barkley sent a letter to the Board dated March 15, 1985, recommending that Ms. Smith not be re-employed during the 1985-1986 school year. Ms. Barkley also rated Ms. Smith "unsatisfactory" on five characteristics listed on a Gadsden County Non-instructional Personnel Assessment form dated March 8, 1985. This form was signed by Ms. Smith on March 15, 1985. Ms. Smith was given an unsatisfactory rating for utilization of time, compliance with school and district policies, attendance, punctuality and leadership. This evaluation was similar to the evaluation given Ms. Smith by Mr. Corbin. Ms. Barkley, Ms. Price and Ms. Palmer were given a Personal Reference Form for Teacher Aide Applicants by Ms. Smith. Ms. Smith told Ms. Price and Ms. Palmer that the forms were going to be used by her to apply for a job outside of its school system. Although both teachers had misgivings about Ms. Smith's ability and did not want her back as a teacher's aide, they both liked her personally and wanted to help her find a job. They also wanted to avoid any conflict with Ms. Smith. Therefore, even though they should have known better, they completed the forms giving Ms. Smith affair rating and indicating that they would employ her as a teacher's aide. Ms. Barkley completed the form given to her by Ms. Smith on April 30, 1985. She gave her a poor rating and indicated that she would not employ her as a teacher's aide. Ms. Barkley had completed a Gadsden County Non-instructional Personnel Assessment form when Ms. Smith left Gretna in 1983. Ms. Barkley gave Ms. Smith a favorable evaluation. She did so, however, because Ms. Smith had only worked at Gretna during the 1982-1983 school year for approximately four months and Ms. Barkley had only been there during three of those months. Therefore, Ms. Barkley did not believe it would be fair to give Ms. Smith an unfavorable evaluation. The Board did not refuse to re-employ Ms. Smith for the 1985-1986 school year in retaliation for any dispute between Ms. Smith and Ms. Barkley or any other person. Ms. Smith was not re-employed because she lacked the necessary job skills to work as a teacher's aide and had failed to perform adequately. On or about July 15, 1985, Ms. Smith filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that the Board had discriminated against her on the basis of retaliation. The Executive Director of the Florida Commission on Human Relations issued a "Determination: No Cause" on May 12, 1987. Ms. Smith filed a Petition for Rehearing. On or about July 13, 1987, the Executive Director entered a "Redetermination: No Cause." Ms. Smith filed a Petition for Relief. The Florida Commission on Human Relations forwarded the Petition the Division of Administrative Hearings by order dated August 18, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Smith's Petition for Relief be DENIED. DONE and ENTERED this 9th day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 1. 2 2. 3 Irrelevant. 4-5 3. 6-7 22. 8 4. 9 23. 10 5. 11 12. The date of termination was July 27, 1983. 12 10. 13-14 13. 15 20-22. 16 10. 17 8. 18 9. 19 22. 20 23. 21 11. The evidence failed to prove that the Board acted solely on the recommendation of Ms. Barkley. 22 25. 23 26. 24 Not supported by the weight of the evidence. 25-26 27. 27 28. 28 While Ms. Smith may have corrected the "ride problem" she continued to be late during the 1984-1985 school year. 29-31 27. 32-33 33. 34-36 Although these proposed findings of fact are correct they are irrelevant. 37 41. 38-39 Not supported by the weight of the evidence. 40 Irrelevant and not supported by the weight of the evidence. 41 35. Not supported by the weight of the evidence. Irrelevant. 44 35. 45-46 36. Not supported by the weight of the evidence. Although it is true that Ms. Smith did improve her punctuality arriving at Gretna during 1984 she failed to continue to arrive on time during the rest of the school year. See 28. Respondent's Proposed Findings of Fact 1 45. 2 21. 3 10 and 11. 4 14. 5 16. 6 Not supported by the weight of the evidence. See 16. 7 16-18. 8 20 and 22. 9-10 37. 11 41. 12 42. 13 28 and 33. 14 28-29 and 33. 15 45. COPIES FURNISHED TO: EDWARD J. GRUNEWALD, ESQUIRE LEGAL SERVICES OF NORTH FLORIDA, INC. 400 NORTH MADISON STREET QUINCY, FLORIDA 32351 CLAUDE B. ARRINGTON, ESQUIRE 211 EAST JEFFERSON STREET QUINCY, FLORIDA 32351 DONALD A. GRIFFIN EXECUTIVE DIRECTOR 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925 DANA BAIRD GENERAL COUNSEL 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925
The Issue Whether just cause exists for the proposed disciplinary action against the Respondent.
Findings Of Fact At all times material to this case, Cheryl McDonough (Respondent) was employed by the Pinellas County School Board (Petitioner) under a professional services contract. The Respondent was initially employed as a teacher by the Petitioner in 1987. On December 11, 1989, the Respondent received a written reprimand from the Assistant Principal at Northeast High School for using poor judgement by displaying anger when dealing with inappropriate student behavior. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Northeast High School until budgetary considerations led to her transfer to Osceola High School. On January 13, 1992, the Respondent received a written reprimand for using poor judgement by displaying anger and using vulgar language when dealing with inappropriate student behavior at Osceola High School. The reprimand was issued by the School District Director of Personnel Services. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Osceola High School until her position was eliminated for fiscal reasons. On February 14, 1994, the Respondent received a written conference summary from Joann Andrews, Principal at Azalea Middle School, where she had become employed. The summary notes that alcohol had been detected on the Respondent's breath during school hours. The Respondent denied the allegation. On April 20, 1994, the Respondent received a written school memorandum from the Assistant Principal at Azalea Middle School for smoking in an inappropriate area on school property. In the summer of 1994, the Respondent was transferred to the district service center where she worked until gaining employment at Lakewood High School in the fall of 1994. By letter from the Superintendent of Pinellas County Schools dated July 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be suspended without pay for ten days. The basis for the recommendation were allegations that the Respondent made disparaging remarks to a student and his mother in front of other students, that the Respondent had the odor of alcohol on her breath, and that the Respondent made derogatory remarks about another teacher to other students and had attempted to disrupt the other teacher's class. On September 13, 1994, the School Board issued a Final Order suspending the Respondent without pay for five days based on the allegations set forth in the July 7 letter. The Final Order was issued pursuant to a settlement agreement reached by the parties. During the 1994-1995 school term, the Respondent was employed as a teacher at Lakewood High School. During a Lakewood faculty meeting on August 23, 1994, the smell of alcohol was detected on the Respondent's breath. During a Lakewood "open house" in September, 1994, the smell of alcohol was detected on the Respondent's breath. During the first semester of the 1994-1995 school term, several students smelled the odor of alcohol on the Respondent's breath. During the first semester of the 1994-1995 school term, the Respondent used vulgar language including "damn," "hell," "shit," "bitch," and "fuck" in the classroom and within the hearing range of students. During the first semester of the 1994-1995 school term, the Respondent used demeaning language towards students in her classroom, calling them "brats" and "dumb," and stating "you are the worst class" and "you will never amount to anything." The Respondent told her sixth period class that she would kill them if she thought she could "get away with it." On more than one occasion, the Respondent became frustrated by the class behavior. She would give the class a "work assignment" and would refuse to teach. There is no credible evidence that the "work assignments" were part of any prepared teaching plan or were otherwise utilized as instructional resources. During the first semester of the 1994-1995 school term, the Respondent physically separated her fourth period class into two groups which she identified as "learners" and "non-learners." A row of empty desks was used to divide the students. During this episode, the Respondent refused to teach the group she called "non-learners." After receiving complaints from students about the division, an official at the school visited the Respondent's class and directed her to reunite the class. By letter from the Superintendent of Pinellas County Schools dated November 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be dismissed. The basis for the recommendation were allegations as follows: the Respondent used profanity and demeaning language towards students on numerous occasions; the Respondent had alcohol on her breath while at school on two occasions; the Respondent stated to her sixth period class that she would kill them all if she could get away with it; and that the Respondent separated students into two groups within the classroom setting and taught only half the class. The Respondent requested a formal administrative hearing which is the basis for this Recommended Order. At the hearing, the Petitioner's expert witnesses opined that the allegations, if established to be true, were of sufficient seriousness to impair her effectiveness as a teacher.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Pinellas County School Board enter a Final Order terminating the employment of Cheryl McDonough. DONE and RECOMMENDED this 20th day of June, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6983 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 10. Rejected, correct year is 1994. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected as to use of medication. The greater weight of credible and persuasive evidence fails to establish that the Respondent took the medication at the times when the odor of alcohol was detected on her breath. Immaterial. The evidence fails to establish that the students in the classes taught by the Respondent are responsible for her behavior therein. 6-11. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 14. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 15-16. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. Rejected. The Respondent does not recall making the statement so her explanation of her intent is speculative. As to the cited testimony of Ms. Hanes, it is immaterial because the statement is not "in and of itself" the sole event warranting termination. 19-21. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, immaterial, no related allegation. Rejected, immaterial Rejected, immaterial. Classroom management "techniques" are not the sole cause warranting termination. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County Post Office Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 Marguerite Robinson, Esquire Kelly & McKee Post Office Box 75638 Tampa, Florida 33675
Findings Of Fact White Swan is a corporation registered and doing business in the State of Florida. White Swan is engaged in the sale of wholesale food supplies to Florida public entities. A sampling of the Florida public entities White Swan has transacted business with, include: Tampa General Hospital, Charlotte County Sheriff's Department, County Jails in West and Central Tampa, Pasco County Detention Center, Polk County Sheriff's Department and the Duval County School System. White Swan entered a plea of guilty and was convicted on June 10, 1993, of an offense constituting a public entity crime as defined within Section 287.133(1)(g), Florida Statutes. White Swan pled guilty and was convicted in the U.S. District Court for the Southern District of Texas, Houston Division, of a one count information for violation of the Sherman Antitrust Act, 15 U.S.C. S. 1. The count for which White Swan pled guilty and was convicted was brought by information filed April 28, 1993, pursuant to a plea agreement. It charged a conspiracy to rig bids for contracts to supply wholesale grocery products to certain public school districts and other public entities located in southeastern Texas. On June 10, 1993, White Swan, pursuant to its plea, was sentenced to pay a fine in the amount of $650,000. The amount of $200,000 was paid on the date of sentencing and $90,000 was to be paid each month thereafter. White Swan has paid the fine in full. On July 30, 1993, White Swan entered into a settlement agreement with the State of Texas. In connection with the settlement, the State of Texas filed an original petition, and a consent judgement and agreed permanent injunction. The settlement resulted in White Swan paying a civil fine in the amount of $35,000 and attorney's fees in the amount of $25,000. Mr. James Maurice Johnson, a former employee of White Swan, also pled guilty to an offense arising from the same transaction for which White Swan entered a plea. On March 12, 1991, a one count information was filed by the United States against Mr. Johnson (a former employee of White Swan's Houston Division Office involved in the preparation and submission of bids for the supply of wholesale grocery products to certain public school districts located in southeastern Texas) for violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. S. 1. Pursuant to Plea Agreement entered into between Mr. Johnson and the United States pursuant to Fed. R. Crim. P. 7(b), as well as a settlement agreement, Mr. Johnson entered a plea of guilty to the one count information, constituting commission of a public entity crime as defined within Section 287.133(1)(g), Florida Statutes. The information to which Mr. Johnson entered a plea of guilty detailed participation by him in a conspiracy to rig bids for the award and performance of contracts to supply wholesale grocery products to certain public school districts in Southeastern Texas in late 1986 through May 1990. The activities of Mr. Johnson did not involve any business conducted by White Swan within the State of Florida, by its Florida division. Pursuant to Sections 287.133(3)(a) and (b), Florida Statutes, White Swan timely notified DMS of its guilty plea resulting in conviction through submission of a Public Entity Crime Sworn Statement, dated January 20, 1992. By letter dated January 28, 1992, DMS corresponded with a representative of White Swan's Lakeland, Florida division requesting additional information regarding said conviction. By letter dated February 7, 1992, counsel for White Swan responded to the January 28, 1992, letter from DMS providing additional information and documentation regarding the conviction of Mr. Johnson. By letter dated March 9, 1992, DMS corresponded with counsel for White Swan requesting to be provided with additional information and documentation and, by letter of April 3, 1992, the requested information and documentation was forwarded to the Department. On April 21, 1994, DMS issued a Notice of Intent pursuant to Subsection 287.133(3)(e)1., Florida Statutes. The Notice of Intent was based on the June 10, 1993 conviction of White Swan of a public entity crime as defined by Section 287.133(1)(g), Florida Statutes. On May 10, 1994, pursuant to Subsection 287.133(3)(e)2., Florida Statutes, White Swan timely filed a petition for formal administrative hearing pursuant to section 120.57(1), Florida Statutes, to determine whether it is in the public interest for White Swan to be placed on the State of Florida convicted vendor list. Subsection 287.133(3)(e)3., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor upon the convicted vendor list. Subsection 287.133(3)(e)3.d, Florida Statutes, establishes "[p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the convicted vendor list. On August 5, 1991, Mr. Johnson was sentenced to five years probation (as well as service of four months confinement via electronic monitoring), and he was fined $10,000 payable at $200 per month over the five years' probation. Mr. Johnson is in full compliance with the terms of the sentence. White Swan has made full restitution to all of the school districts potentially involved in or affected by any of the subject activities of Mr. Johnson in southeastern Texas, and the potential claims against White Swan have been released. The subject school districts include: Alvin Independent School District; Alief Independent School District; Brazosport Independent School District; Clear Creek Independent School District; Columbia- Brazoria Independent School District; Channelview Independent School District; East Chambers Independent School District; Fort Bend Independent School District; Goose Creek Independent School District; Galveston Independent School District; Huntsville Independent School District; Katy Independent School District; Klein Independent School District; Sheldon Independent School District; Spring Branch Independent School District; Stafford Municipal School District; and Houston Independent School District. In total, White Swan has paid to these school districts the sum of $185,086.22. In each instance, the schools have agreed to utilize the amounts paid for restitution in conjunction with their nutritional programs, exclusive of those portions of the payments representing attorneys' fees and administrative expenses. White Swan commenced discussions with the Department of Justice on July 30, 1990, for the purpose of acceptance of responsibility for Mr. Johnson's actions, as well as for negotiations of a criminal fine in conjunction with the entry of a plea to a one count information. Upon finalization of the matter with the U.S. Department of Justice, White Swan paid a civil penalty to the State of Texas in the amount of $60,000. Subsection 287.133(3)(e)3.e, Florida Statutes, establishes "[c]ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. Upon learning of the Grand Jury investigation and the possible violation of antitrust laws in connection with bids submitted to public schools in Southeastern Texas, in early June of 1990, White Swan fully cooperated with the Department of Justice. It encouraged the full cooperation of Mr. Johnson (and any and all other employees) in the investigation. White Swan immediately took affirmative steps to ensure a complete cessation of any activities of the nature alleged to have occurred, and it commenced its own internal investigation of the matter. Mr. Johnson was reprimanded and relieved from his responsibilities as bid manager for the Houston division. Separate counsel was engaged for Mr. Johnson. Through the cooperative efforts of White Swan, Mr. Johnson entered into a plea agreement and voluntarily entered a plea of guilty to the one count information. Pursuant to the negotiations with the Department of Justice, White Swan has submitted detailed information regarding the volume of commerce affected by the activities of Mr. Johnson (including detailed sales documentation regarding all items sold to the various entities during the relevant bid period). White Swan offered to provide any additional information or documentation which might be desired by the Department of Justice in conjunction with its investigation and plea negotiations. White Swan has fully cooperated with DMS in connection with its investigation initiated pursuant to section 287.133, Florida Statutes. Subsection 287.133(3)(e)3.f, Florida Statutes, establishes "[d]isassociation form any other person or affiliates convicted of the public entity crime" as a mitigating factor. White Swan reprimanded Mr. Johnson and removed him as bid manager for the Houston division, arranged for the institution of new procedures for handling bids by the Houston division and, in addition, appointed a new Houston division president. Mr. Johnson's employment has been subsequently terminated. The former Houston division president (Mr. John Cogniglio) was transferred to White Swan's Euless, Texas, office in the early fall of 1990. He currently holds the title of Director of Sales -- Coffees and Chemicals, and he does not have any supervisory responsibility over any management personnel located in the other divisions of White Swan. Subsection 287.133(3)(e)3.g, Florida Statutes, establishes "[p]rior or future self-policing by the person or affiliate to prevent public entity crimes" as a mitigating factor. White Swan has established an extensive antitrust compliance program (including adoption and distribution of written policies and guidelines) to educate all employees in position of authority in connection with the sales of any products (including but not limited to all those involved in the submission of bids to any public entity). White Swan, in late 1990, adopted for dissemination within the corporation and all divisional offices a comprehensive "Antitrust Policy and Compliance Guide" setting forth in detail the corporation's policy regarding strict compliance with any and all antitrust laws (state and federal), explaining the types and nature of activities prohibited and proscribed by those laws (including specific "do's and don't's"), covering commonly asked questions, etc. The Policy and Compliance Guide sets forth disciplinary actions the corporation may take against any employee violating the antitrust laws, including possible termination. The Policy and Compliance Guide addresses in detail the types of activities in connection with bidding on public entity contracts which are prohibited. White Swan has conducted educational sessions for all employees having responsibilities encompassed by the antitrust laws. A copy of the Policy and Compliance Guide was distributed to all management, sales, office, and clerical employees of the Florida division, and each of those employees signed acknowledgments of receipt and understanding of the information set forth therein. Training sessions were held at the Florida division on July 19- 20, 1991, and White Swan will continue to engage in periodic training sessions in each of its division offices. All supervisory personnel of the White Swan corporation have been advised of their responsibility to review the conduct of all employees under their supervision for adherence with all applicable antitrust laws, as well as other related laws applicable to the corporation's business, and each employee has been instructed to promptly notify corporate management in the event of the occurrence of any activity potentially violative of the antitrust laws or the corporate policy statement. Subsection 287.133(3)(e)3.h, Florida Statutes, establishes "[r]einstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding" as a mitigating factor. To date, White Swan has not been advised of any limitation placed upon its engaging in business with any public or private entities in any location throughout the United States including the school districts of Texas. Subsection 287.133(3)(e)3.i, Florida Statutes, establishes "[c]ompliance by the person or affiliate with the notification provisions of paragraph (a) or paragraph (b)" as a mitigating factor. White Swan has fully complied in providing notification to DMS with regard to the guilty pleas and resulting convictions of White Swan and Mr. Johnson. It has also promptly supplied to DMS all information and documentation requested in conjunction with the investigation by DMS. Subsection 287.133(3)(e)3.j, Florida Statutes, establishes "[t]he needs of public entities for additional competition in the procurement of goods and services in their respective markets" as a mitigating factor. White Swan is engaged in the sale of wholesale food supplies to various public entities within the State of Florida. As part of its April 3, 1992 response to the inquiry letter of DMS of March 9, 1992, White Swan provided a copy of the computer printout reflecting the names and addresses of all entities within the State of Florida to whom White Swan has sold products during the fiscal years 1989 through 1990, as well as a similar customer listing for the fiscal years 1991 through March 25, 1992. White Swan is a supplier of significant goods and services to public entities within the State of Florida through its Florida division office. The inability of White Swan's Florida division office to bid for the supply of wholesale health food products would have an impact on competition for the supply of those goods to public entities in the State of Florida. Subsection 287.133(3)(e)3.k, Florida Statutes, establishes "any demonstration of good citizenship" as a mitigating factor. The Florida division office of White Swan (like all other division offices) has been an active supporter of the activities of the public school districts located within its market area, including periodic donations of food preparation equipment and other supplies for school activities and charitable fund-raising functions. The Joint Stipulation filed in this case on June 1, 1994, provides a full and complete factual basis for determining whether White Swan should be placed on the convicted vendor list in light of the facts and criteria set forth in Subsection 287.133(3)(e)3.a. through k., Florida Statutes. There are no other disputed issues of material fact between DMS and White Swan which would require a formal hearing.
The Issue Whether just cause exists for Petitioner, Polk County School Board, to terminate Respondent, Jean Regan, from her employment as a teacher.
Findings Of Fact Under Florida law, whether charged conduct constitutes a deviation from a standard of conduct established by statute or rule is a question of fact to be decided by the trier-of-fact, considering the testimony and evidence in the context of the alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995). Thus, deciding whether Ms. Regan’s alleged conduct violates the law as charged in the School Board’s termination letter is a factual, not legal, determination. Based on the weight of the credible evidence, the School Board failed to establish by a preponderance of the evidence that Ms. Regan acted dishonestly by assisting students in selecting correct answers. Ms. Regan credibly denied ever assisting the students in that manner. In fact, the credible evidence confirmed that Ms. Regan had little opportunity to read the passages to determine the correct answers and, given that the students had different versions of the FSAT, it was highly improbable that she could have known the correct answers when moving from student to student. Based on the weight of the credible evidence, the School Board failed to establish by a preponderance of the evidence that Ms. Regan acted dishonestly by otherwise violating the FSAT standards. The credible evidence confirmed that Ms. Regan permissibly could: touch the test booklets and point at items while providing oral accommodations; flip through the test booklet to look for the questions the students had identified as needing an accommodation because that is exactly how they practiced in the classroom; and encourage the students to make sure that they completed the test by reading the corresponding directions, particularly after they prompted her to do so, just as they learned in class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Polk County School Board, issue a final order reinstating the Respondent, Jean Regan, as a classroom teacher and awarding her back pay to the date on which the School Board first suspended her without pay. DONE AND ENTERED this 26th day of February, 2020, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 26th day of February, 2020. COPIES FURNISHED: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Bartow, Florida 33830-4620 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-4000 (eServed) Jacqueline Byrd, Superintendent 1915 South Floral Avenue Post Office Box 391 Bartow, Florida 33831 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-4000 (eServed)
The Issue Whether the actions taken by the superintendent and staff of the Duval County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended.
Findings Of Fact Congress amended the Elementary and Secondary Education Act of 1965 by Public Law 91-230 instituting a project referred to as the Title I Program. The Respondent, Department of Education, has the responsibility of administering the Title I Program and dispensing federal funds to the various school districts throughout the State of Florida. Petitioner, Duval County School Board, is a large urban school district of some 112,000 students and 10,000 employees. There are 134 schools in the district of which 28 are designated as E.S.E.A. Title I Project Schools. The statute under consideration is 20 U.S.C.A. Sec. 241(e): "(a) A Local educational agency may receive a grant under this sub-chapter for any fiscal year only upon application therefore approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish) . . . (3) That . . .(c) state and local funds be used in the District of such agencies to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such districts which are not receiving funds under this sub-chapter: . . . provided further, That each local educational agency receiving funds under this sub-chapter shall report on or before July 1, 1971 and on or before July 1 of each year thereafter with respect to its compliance with this clause; . . ." The regulation under consideration which was promulgated to implement the statute is Regulation Sec. 116.26, a part of which reads: "(a) A state educational agency shall not approve an application of a local educational agency for a grant under section 141(a) of the Act, or make payments of Title I funds under a previously approved application of such agency, unless that local educational agency has demonstrated, in accordance with paragraph (c) of this section, that services provided with State and local funds in title I project areas are at least comparable to the services being provided with State and local funds in school serving attendance areas not designated as Title I project areas. Such approval shall not be given unless the local educational agency also provides the assurances and the additional information required' by paragraph (e) of this section with respect to the maintenance of comparability. For the purpose of this section, State and local funds include those funds used in the determination of fiscal effort in accordance with Section 116.45." 116.26(c) "If any school serving a Title I Project Area is determined not to be comparable under this paragraph, no further payments of Title I funds shall be made to the local educational agency until that agency has taken the action required by paragraph (k)(1) of this section to overcome such lack of comparability." Regulation Sec. 116.26(k)(1) in part reads: "that such local educational agency has allocated or reallocated sufficient additional resources to Title I Project Areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance." Petitioner, Duval County School Board, has been the recipient of Title I funds on a year to year basis since 1965, but was deemed by the Respondent to be in violation of the federal requirements from December 1, 1974 through January 2, 1975 for the reason that Petitioner had not "achieved comparability" for that period of time. Funds withheld from Petitioner, in excess of $325,000 are involved in this hearing. The following sequence of events are pertinent: On or about July 1, 1974, the Duval County application for Fiscal Year 1974 was filed and approved based on the assurance that comparability existed in Duval County and would be maintained throughout the 1974-75 school year. On or about September 27, 1974, the Respondent advised local school districts that October 1, 1974 was the date for collecting the data on which the comparability report for Fiscal Year 1975 would be based. On October 7 and 8, 1974, and again on November 7 and 8, 1974, conferences and meetings were held with representatives of various school boards, including those of the Petitioner. The purpose of these meetings and conferences was to inform these school boards concerning the requirements of achieving and maintaining comparability. On November 20, 1974, in a memorandum from Woodrow J. Darden marked "URGENT" the Respondent advised all Superintendents, the Finance Officers and Title I Coordinators that the comparability reports were due on or before December 1, 1974. A part of said memorandum stated: "If the comparability report submitted by your district did not meet the measures to determine comparability as outlined in the Federal Regulations, administrative or Board action for the purpose of reallocating resources should be taken on or before December 1, 1974, to bring the schools into compliance." The date of December 1, 1974 is established by Regulation 116.26(b)(7). On November 26 and 27, 1974, the Superintendent authorized a reallocation of instructional staff and authorized budgetary transfers to bring Petitioner up to the required level of comparability. On December 1, 1974, Petitioner filed its report. On December 17, 1974, the Director, Special Projects, received a copy from Department of Education of a MAILGRAM from Robert R. Wheeler, Acting Deputy Commissioner for School Systems, United States Office of Education to Honorable Ralph Turlington, stating: "this is to remind you that your agency is required under Title I of the Elementary and Secondary Education Act not to make any further payments as of December 1 to any local educational agency that has not as of that date complied with the comparability requirements in 45 CFR 116.26 and to notify each such agency not to obligate any Title I funds after that date. Compliance with this requirement is subject to Federal Audit. Your continued cooperation is appreciated." By a letter dated December 18, 1974, the Respondent notified Petitioner funds were being withheld for the period of December 1 through December 16, 1974. An audit was conducted by Petitioner following the withholding of funds of December 18, 1974, and this audit revealed that comparability had still not been achieved. A revised report dated December 27, 1974 indicated that additional personnel still were needed to meet comparability requirements. Pursuant thereto additional personnel reported to work on or about January 2, 1975. By a letter dated January 16, 1975, the Respondent rescinded the prior authorization that had permitted the resumption of the use of Title I funds as of December 16, 1974 and extended the period of withholding of Title I funds through January 1, 1975. Following the notification to Petitioner that the funds were being withheld, the Petitioner requested a hearing in order to appeal the withholding of the Title I funds for the period of December 1, 1974 through December 16, 1974. This request for a hearing was later amended to include the period of time from December 15, 1975 through January 1, 1975. Petitioner contends: That it complied with the requirements of the subject statute and regulation when it unconditionally committed itself on November 26, 1974 to the employment of necessary personnel by the establishment and budgeting of all necessary positions and direction that such positions be filled. Petitioner further contends that good faith on its part and substantial compliance is all that the statute and regulation require. Respondent contends: That the subject statute and regulation require that compliance with the comparability requirements is a continuing state of being and must be maintained throughout the year. Respondent further contends that the Federal statute and regulation require not only that the positions be budgeted and directions be given to employ but that the positions be actually filled and the personnel on the job on or before the filing of the report required by Regulation 116.26(b)(7). The Hearing Officer further finds: That both Petitioner and Respondent have demonstrated a dedication and concern for the schools within their respective jurisdictions; That both Petitioner and Respondent have been diligent in trying to act within the provisions of the subject statute and regulations; That the personnel of both the Petitioner and Respondent are familiar with the requirements of the statute and regulation but the federal requirements are subject to different interpretations by reasonable persons. There was no meeting of the minds of the parties from the federal, state and local governmental units as to the required method of compliance with the laws.
Findings Of Fact Respondent, Lester Nathaniel Johnson, is the holder of teacher's certificate number 384068 issued by the State Department of Education. It is valid until June 30, 1990. He is a 1975 graduate of Bethune-Cookman College where he majored in history and sociology, and from Nova University in 1981 where he received a master's degree. Johnson first began teaching in the Dade County Public School System in September, 1975 and has taught in the System since that time. During school years 1981-82 and 1982-83 he was an instructor at Miami Lakes Junior High School (MLJHS) teaching social studies and history. During school year 1982-83 first period at MLJHS began at 8:45 a.m. and ended fifty-five minutes later at 9:40 a.m. Classes then changed and "homeroom" activities began at 9:45 a.m. and lasted ten minutes. At 9:55 a.m. a bell rang and students had five minutes to go to second period class which began at 10:00 a.m. The allegations in the notice of charges and administrative complaint relate to an alleged incident which occurred on the morning of March 23, 1983 on the school premises. As clarified by testimony in this cause, the "incident" could not have occurred any earlier than around 9:57 a.m. that morning in respondent's classroom during the break between homeroom and second period. The testimony also shows that after the incident, which took no more than a minute, the complainant would have had to leave the classroom, talk briefly with her girlfriend in the hallway, and still have time to reach a street adjacent to the school building approximately two hundred yards away in a minute or so, or by 9:59 a.m. Michelle Pinson was a thirteen-year-old seventh grader of MLJHS during the 1982-83 school year. According to Pinson, on the morning of March 23, 1983 she left her homeroom after the bell rang at 9:55 a.m. to attend her second period class, English. She related that she had to walk past respondent's classroom to get to her second period class, and that it normally took her around a minute to a minute and a half to reach Johnson's classroom. At the final hearing, Michelle claimed that while walking past his classroom that morning, he pulled her inside the room, which was empty, shut the door and began "kissing all on (her)" including her neck and face, and "feeling on (her)" including her breasts and genital area. However, some two weeks after the "incident", she had told an assistant state attorney under oath that Johnson had kissed her only on the neck and had not touched her in the genital area. When she started to leave the room, Pinson stated Johnson grabbed her right buttocks and told her not to tell anyone. According to Pinson, the whole incident took no more than a minute. Testimony from a non-interested witness, Arthur Diamond, a science teacher at MLJHS, confirmed the fact that Johnson went to the restroom after the 9:55 a.m. bell rang, chatted for a minute or two with Diamond, and could not have returned to his classroom until around 9:57 a.m. Therefore, if such an incident did in fact occur, it could not have happened until after 9:57 a.m. After leaving the classroom, the first person Michelle saw was Natalie Blackwell, a longtime friend and classmate, and related to her what had happened. Natalie attempted to corroborate Michelle's story, and stated that she saw a hand grab Michelle's buttocks as she left the classroom, and as she passed by the classroom she saw the hand belonged to Johnson. Natalie's version of the story must be tempered by several considerations. First she testified the incident occurred after lunch rather than in the morning. Secondly, she was a student in Johnson's class and had just been suspended for ten days for fighting. When she returned Johnson refused to allow her to do makeup work for the time she was suspended and consequently she received a failing grade. For this, Natalie had threatened to "get" Johnson. Finally, Natalie had also received several detentions from Johnson prior to the "incident" and was dating Michelle's brother at the same time. Therefore, her testimony is not found to be credible, and has been disregarded. "A little bit before" 10:00 a.m., Michelle was found walking down Ludlam Avenue by an instructor some two hundred yards or so from the main building. Michelle had walked that distance after she claimed the "incident" had occurred and after she had spoken to Natalie. The undersigned finds it highly unlikely that Michelle could have had an encounter with Johnson after 9:57 a.m., which lasted no more than a minute, then talked briefly with her friend in the hallway, and then walked some two hundred yards from the building, all within a span of a minute or so. After being stopped by the instructor on Ludlamd Avenue, Pinson returned to the main building and was seen by the assistant principal several minutes after 10:00 a.m. wandering in the hallway. He immediately approached her and noted she had tears in her eyes and was sobbing. Pinson told the assistant principal that she had an encounter with Johnson. Both went to the principal's office where an interview was conducted with Pinson, and later with Johnson. After conducting an investigation, school authorities turned the mattter over to petitioners, School Board of Dade County and Education Practices Commission (EPC), who then initiated these proceedings. Respondent denied the incident occurred and that he had not even seen Michelle during the break between homeroom and second period class. On the morning in question, Johnson had supervised a breakfast program for students from 8:00 a.m. to 8:40 a.m. in the cafeteria, taught a first period class form 8:45 a.m. to 9:55 a.m. When the bell rang to change classes, the students departed the classroom and Johnson then left his classroom to visit the restroom down the hall. As noted earlier, this was confirmed by another teacher, Arthur Diamond, who testified that Johnson followed him into the restroom right after the bell rang where they briefly chatted and then both departed, returning to their respective classrooms around 9:57 a.m. The evidence is sharply conflicting in this proceeding but it is found that no encounter between Johnson and Pinson occurred on the morning of March 23, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED and that he be reinstated and given back-pay retroactive to April 20, 1983. DONE and RECOMMENDED this 8th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1984. COPIES FURNISHED: Jesse T. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 W. Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N.E. 2nd Avenue Miami, Florida 33132 Mr. Donald Griesheimer Executive Director Education Practices Commission Knott Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Respondent attends Thomas Jefferson Junior High School. With the exception of band class which he attends regularly and achieves high marks, his absentee rate (unexcused) is approaching 50 percent and he is receiving failing grades. He is frequently disruptive in class and disrespectful to his instructors. He regularly comes late to his classes or leaves before being excused. Petitioner has made frequent attempts to assist Respondent. All available counseling and disciplining techniques have been used without success. Respondent will be 16 years old in September and intends to withdraw from school at that time. Respondent and his mother seek his release from mandatory school attendance now so that he may begin vocational training. School officials agree that this is appropriate, but the application has not been completed due to communication problems between Mrs. Perez and Thomas Jefferson Junior High School.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Respondent to its opportunity school pending release from mandatory school attendance. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Sylvia Perez 460 Northwest 125 Street Miami, Florida 33168 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether Respondent should be terminated from her position as an instructional employee for gross insubordination and being willfully absent from duty.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this termination case, Petitioner, Lake County School Board (Board), seeks to terminate Respondent, Brenda Armstead, an instructional employee, on the ground that she was willfully absent from duty without leave and guilty of gross insubordination by virtue of having repeatedly refused to report to her job assignment. In a letter dated May 26, 2000, Respondent asked for a hearing "as soon as possible," contending that the "termination was illegal." In school year 1999-2000, Respondent was employed as a teacher at Lake Hills School in Eustis, Florida, where she taught 3 to 5-year-old children with severe emotional disabilities. In September 1999, Respondent was arrested for stalking. However, the criminal charges were later dropped or reduced to a lesser charge. Pending the disposition of the matter, Respondent continued working in the classroom. In January 2000, Respondent reported to her supervisor that she had been exposed to "CMV," an infectious viral disease. Despite being tested as negative, Respondent continued to have concerns with her health and began to exhibit unusual or bizarre behavior in the classroom. Among other things, Respondent constantly wore gloves in the classroom, avoided physical or close contact with her aides, and exhibited other unusual habits or practices. She also began sending "unusual" correspondence to the Superintendent. Because of this, she met with her principal and the Board's Assistant Superintendent on February 14, 2000. At that meeting, Respondent was orally directed to report to the Board's MIS Copy Center (Copy Center) effective immediately until she "could meet with a medical doctor." This action was authorized by School Board Policy 6.171(4), which allows the Board to "require a physical, psychological, and/or psychiatric examination by a physician licensed in the state of Florida when in the School Board's judgment such an examination is relevant to the teaching performance or employment status or a School Board employee." Given Respondent's behavior, the transfer to a non-teaching position was also appropriate and necessary since Respondent was working with emotionally handicapped children. Accordingly, the Board arranged for an evaluation of Respondent by a Dr. Kendall on February 17, 2000; that physician recommended that Respondent be further examined by a psychiatrist. By letter dated February 24, 2000, the Board's Superintendent again directed Respondent to report to the Copy Center for temporary duty pending the results of the examination. The letter was hand-delivered to Respondent on February 25, 2000. Despite both orders, Respondent never reported to work at the Copy Center. Although she "came on campus" a couple of times, she never returned to work. She was later given another oral instruction by telephone on March 16, 2000, by the Board's Assistant Superintendent. By certified mail sent on April 13, 2000, the Board's Superintendent again directed Respondent to report to work, and he warned that if she did not do so by April 19, 2000, she would be subject to being terminated for being absent without leave, gross insubordination, and willful neglect of duties. Respondent received the letter the following day. Even so, she never reported to work. It is fair to infer from the evidence that Respondent was willfully absent from work without leave. On April 21, 2000, the Superintendent recommended to the Board that Respondent be terminated because of her "continuing intentional refusal to report to work despite repeated direct orders, reasonable in nature, and given by and with proper authority to do so." This recommendation was accepted by the Board at its meeting on May 8, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order determining that Respondent is guilty of gross insubordination and being willfully absent without leave, and that she be terminated as an instructional employee for just cause. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2000. COPIES FURNISHED: Dr. R. Jerry Smith, Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Stephen W. Johnson, Esquire McLin, Burnsed, Morrison, Johnson, Newman & Roy, P.A. Post Office Box 491357 Leesburg, Florida 34749-1357 Brenda Armstead 32412 Crystal Breeze Lane Leesburg, Florida 34788 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
