Findings Of Fact At all times relevant hereto, respondent, Elizabeth Harrison, was an instructional employee of petitioner, School Board of Broward County. She has held a continuing contract of employment since 1961. When the events herein occurred, she was assigned as a media specialist (librarian) at Nova Middle School in Davie, Florida. Respondent has also used the name Elizabeth Dunn, her maiden name, and E. Dunn Harrison, a variation of her married name. Prior to this occasion, she had never been disciplined for misconduct. Harrison has known Walter James Stanley, Jr. since 1957 when Stanley was a student at a junior high school in Dade County where Harrison was employed. Stanley has been a mathematics teacher at Nova High School since 1981. Nova High School, Nova Middle School and two elementary schools share the same campus in Davie, but are located in different buildings and are considered separate schools within the Broward County school system. In 1984, Stanley made application with Southeast Bank, N.A. for various personal loans. In connection with one of those loans, he purchased insurance policy number 29-235, certificate number 188693, with Bankers Life Insurance Company of Florida (Bankers Life). Under the terms of the policy, whenever Stanley was disabled and unable to work, Bankers Life was obligated to pay the creditor (Southeast Bank) for that portion of the installment loan payment then due. On the credit application filled out on October 17, 1984, Stanley used the name "Walter Stanly," and gave his employment as a teacher at Nova High School. 2/ He also listed Elizabeth Harrison as his supervisor, and gave the telephone number 475-7760 as the number for the school. That telephone number was actually the telephone number in the media room at Nova Middle School where respondent worked. It should be noted that respondent had no personnel responsibilities in her position as a librarian, and had no connection whatever with Nova High School. Indeed, Stanley's personnel records were maintained by the office manager of Nova High School. On January 27, 1985, Stanley executed a claim form under policy number 29-235 with a general agent for Bankers Life. It was eventually forwarded to the claims department in St. Petersburg on February 20, 1985. The form has appropriate sections to be filled out by the creditor, insured, physician and employer. According to the section purportedly filled out by the employer on January 4, 1985, Stanley (referred to as "Stanly" in the form) had been disabled and absent from work at Nova High School since June 5, 1954. The employer section was not signed by an individual, but simply had the words "Personnel Records Secretary" in the signature block where the employer was to sign. However, in the line for the employer's address, the words "3600 College Avenue, Ft. Lauderdale, Fla., 33314 Attn: Elizabeth Harrison" were written. The employer's telephone number was listed as 305-475-7760. To verify Stanley's absences at work, Patricia Verbosch, a claims representative, telephoned 305-475-7760 on February 25, 1985. After Verbosch explained who she was and the purpose of her call, the person who answered the telephone identified herself as Harrison and said she was the personnel records secretary. Although Harrison denies that it was she who spoke with Verbosch that day, it is found that Harrison did indeed speak with Verbosch. Harrison confirmed to Verbosch that she had filled out the form and that the absences for Stanley were correct. Having been satisfied that Harrison filled out the form, the claims department later approved the claim for absences from work for the period August 14, 1984 through February 1, 1985 and paid the creditor $839.36 by check dated April 11, 1985. Without Harrison's representation, the claim would not have been paid. On May 21, 1985 the claims department of Bankers Life was contacted by petitioner's director of internal affairs, Howard Stearns, and told that three other insurance companies were investigating Stanley. Stearns also gave the department's supervisor, Nancy Berghammer, the actual dates of absences by Stanley during school year 1984-85 as well as Stanley's correct name, address and social security number. Shortly afterwards, Stanley made claim under his policy for continued disability after February 1, 1985. In view of Stearns' conversation, and conflicting dates of absences, Berghammer spoke with Stanley by telephone on June 19, 1985. She then telephoned 305-475-7760 the same day and spoke with a female who identified herself as Elizabeth Harrison. Although Harrison denies it was she who spoke with Berghammer, this is not deemed to be credible. Berghammer requested copies of the computer printout for Stanley's attendance record in 1984-85 and an affidavit verifying his dates of absence. She was told by Harrison that it would be supplied by mail. On July 5, 1985, Berghammer received a letter dated June 26, 1985 on Nova High School stationery which read as follows: TO: Banker's Life Insurance Company Claim's Department RE: Walter Stanly's absences from work March 9, 1945/ss#263-71-5128 Mr. Stanly was absent from work from March '84 to June '84; August '84 to June '85. The letter did not bear the author's signature. In connection with a credit application filed with Sentry Acceptance Corporation (Sentry) in Coral Springs, Florida, Stanley purchased policy number 95735 with American Financial Life Insurance Company (America) effective February 29, 1984. This policy provided that during any period Stanley was disabled and out of work, American was required to pay Sentry that portion of the installment loan then due during the disability period. On the application, Stanley used the name "Walter Stanly" and gave March 19, 1945 and 263-71-5128 as his date of birth and social security number, respectively. In January, 1985 Stanley filed a claim for payment under policy number 95735. In the form it was represented that Stanley was absent from work continuously from June, 1984 through December 19, 1984. The portion of the form where the employer was to give the dates of absence from work was blank. After checking with Stanley, an American claims clerk sent a letter to respondent on January 24, 1985 at Nova High School requesting that she document his absences from work. The letter was returned to the claims clerk with a notation on the envelope "Not at Nova H.S." However, on January 31, 1985 a completed claim form was received in the mail by American. The employer's section stated that "Stanly" had been absent from work continuously from June 19, 1984 through January 30, 1985, and that the employer "(didn't) know when Walter will return to work." It bore the purported signature of Elizabeth Harrison, Secretary Records, and gave the telephone number 305-475-7760. At about the same time American had directly contacted the principal's office at Nova High School requesting verification of Walter Stanley's absences. On January 30, 1985, the principal sent American a letter advising that Walter Stanley was absent from work on December 11 through 14, 17 through 20, 1984 and on January 22 through 25, 1985. When no payment on his claim had been made, Stanley telephoned American in February and was told the school had sent a verification letter with different attendance dates than those given on the claim form. After speaking with Stanley, American's office manager, Laurie Ragan, telephoned Nova High School and obtained a different spelling of Stanley's last name, as well as a different date of birth and social security number than those given on the credit application. In an effort to clarify the matter, Ragan telephoned 305-475-7760 on the morning of February 20, 1985 because Harrison's name and telephone number were given on the claim form. Without identifying herself, Ragan asked to speak to Elizabeth Harrison. A second female came to the telephone, and after Ragan identified herself, she gave the purpose of her call. Although Harrison denied it was she who spoke with Ragan, this assertion is not deemed to be credible. Harrison told Ragan she had just seen Stanley that morning, and would forward the requested information. On February 25, 1985 Ragan received a letter dated February 27, 1985 on Nova High School stationery which stated as follows: Stanly, Walter/bd-March 19, 1945 To whom it may concern: Mr. Walter Stanly (263-71-5128) has been absent since June 15, 1984 and as of now he is still out, because of illness. Sincerely, Elizabeth Harrison The letter was written on Nova stationery which was no longer being used. Such stationery was available to all teaching personnel. On March 7, 1985 American sent Stanley a letter advising him that in view of the "many discrepancies" in his name, social security number, date of birth and absences from work, it would no longer honor his claims until such discrepancies were "cleared up." Stanley also purchased disability policy number H1-839-092 from Northwestern National Life Insurance Company (Northwestern). This policy was not purchased in connection with a loan. The application was made on October 26, 1984 and the policy became effective January 1, 1985. Stanley used the correct spelling of his name and date of birth on the application. On March 27, 1985 he executed a claim for disability benefits ($1,000 per month) under the above policy indicating he became totally disabled on February 1, 1985 and did not expect to return to work until August, 1985 due to a leg injury received from tripping over a water hose. The form also reflected that Elizabeth Harrison was the appropriate employer representative to be contacted. The telephone number 305-475-7760 was given. After receiving the claim on April 2, Anita Holmes, a disability claims examiner for Northwestern, engaged the services of Equifax, a firm which specializes in insurance investigations. Holmes requested, among other things, that Stanley be interviewed and that his attendance records from Nova High School be obtained. The investigator, Walter Lohmann, interviewed Stanley at his residence on April 19, 1985. After interviewing Stanley, Lohmann went to Nova High School to secure his attendance records, but he could not find an Elizabeth Harrison in that school's personnel office. On April 23 he returned to Nova Middle School and went to the media room. He entered, introduced himself to Harrison and requested Stanley's attendance records. She told him the hard copies were at the school board central office but she could supply the information from a 3x5 file card she had in her file box. She then retrieved a 3x5 card and told Lohmann that Stanley had been absent continually from February 2 through April 14, 1985. Lohmann later received a copy of Stanley's attendance records from Nova High School and they reflected that Stanley was actually absent on February 6 and March 7, 8 and 11 (1/2 day) due to illness. As a result of this investigation, Holmes wrote Stanley on May 3, 1985 advising him that his claim had been denied. Respondent denied (a) that she was involved with Stanley, (b) that it was she who had spoken with Verbosch and Ragan on the telephone, (c) that she had authored and mailed the employer's statements and various letters sent to the insurance companies, and (d) that she had given Lohmann the false attendance records on April 23, 1985. However, she did concede that Stanley, an old friend, may have asked her to participate in the scheme on one occasion. To support her steadfast denial, Harrison produced an "alibi" witness who claimed she was with respondent on the morning of February 25, 1985. According to this witness, she specifically remembered taking Harrison to work that day around 12:30 p.m., or after Verbosch had telephoned the media office and spoken with a female who identified herself as respondent. However, this testimony is discredited since the official school attendance records reflect Harrison was present at work the entire day. Harrison also offered an expert documents examiner who opined, without credible contradiction, that the signature on Harrison's personal checks was not the same as the signature on the letter purportedly authored by Harrison on February 25 and the employer's certificate on the various claim forms. In fact, the expert found that the claims form certificates may have signed by two or three different persons. In view of this testimony, it is found that Harrison did not author the letter dated February 25 or sign any of the various claim forms. It is further found that Harrison did not receive any financial reward by virtue of her conduct. 4/ However, the remainder of her testimony is not deemed credible, and it is found she had knowledge of the letters and forms, and otherwise aided and assisted Stanley in his efforts to defraud the insurance companies. A former associate superintendent testified on Harrison's behalf and stated that if the facts in the amended petition were true, it would still not justify her dismissal. However, the witness acknowledged that if Harrison represented herself to various insurance companies as a responsible school official for the purpose of allowing a third party to collect unauthorized benefits, such conduct would be "serious" and would warrant the consideration of dismissal as a penalty. Harrison's principal could not say whether Harrison's effectiveness as a teacher at Nova Middle School was impaired by virtue of her conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and she be suspended for school year 1986-87 and thereafter reinstated on probationary status the following two years, with a return to annual contract status in school year 1989-90. All other charges should be dismissed. DONE and ORDERED this 12th day of August, 1986, in Tallahassee, Florida. DONALLD R. ALEXANDER 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 12th day of August, 1986.
Findings Of Fact Respondent has for twelve years been an instructional employee of the School Board of Broward County, Florida. She currently holds a continuing contract as a classroom teacher, and is assigned to Perry Elementary School in Miramar, Florida. During the same time period, Harold McKahand, Respondent's husband, and Peggy Freeman were instructional employees of the Broward County School Board assigned to Perry Middle School, adjacent to Perry Elementary where Respondent taught. From as early as 1979, Respondent had suspected that her husband and Mrs. Freeman were having a love affair. These suspicions were a frequent topic of conversation between Respondent and her husband. In fact, Respondent had indicated to her husband her intention to seek a divorce. Notwithstanding Mr. McKahand's assurances that he did not want a divorce and would no longer see Mrs. Freeman, he continued to do so, and Mrs. Freeman on many occasions made telephone calls to the McKahand residence, which Respondent apparently considered harassing in nature. All of this culminated in a discussion between Respondent and Mrs. Freeman in August of 1981 in which Respondent requested that Mrs. Freeman cease making telephone calls to her home because they disturbed her and her two children. After this discussion between Respondent and Mrs. Freeman, there was little or no personal contact between them until the act which gave rise to this proceeding. On December 12, 1981, Respondent, her husband and two children attended a racquetball tournament. After the tournament, they returned to their home and Respondent busied herself with work around the home. Respondent's husband, unbeknownst to Respondent, took the family car and proceeded to Perry Middle School to obtain some work folders from his office. Upon arriving at Perry Middle School, Mr. McKahand discovered Mrs. Freeman conducting a Saturday afternoon basketball practice with the school's girls basketball team, which she served as coach. Mr. McKahand and Mrs. Freeman conversed briefly, and Mr. McKahand departed the school and returned home. Meanwhile, Respondent's oldest son had left the family home without performing certain chores which had been assigned to him by Respondent. Upon discovering her son's absence, Respondent took her bicycle and began to search the neighborhood for him. Her search carried her ultimately to the gymnasium at Perry Middle School. Respondent had no knowledge that her husband had gone to his office at Perry Middle School, nor did she know that Mrs. Freeman was conducting a basketball practice at the school. When Respondent arrived at the school, she walked into the gymnasium to see if her son was there. Upon entering the gym, she saw the basketball practice in session, and noticed Mrs. Freeman. When she did not see her son, Respondent started walking from the gym. A member of the girls basketball team advised Mrs. Freeman that Mrs. McKahand was at the door. Although there is some conflict in the testimony on this point, it appears that Mrs. McKahand did not beckon to Mrs. Freeman to follow her outside the gym, but that one of the team players told Mrs. Freeman of Respondent's presence, and indicated to Mrs. Freeman that Respondent wanted to talk to her. Upon being advised of this, Mrs. Freeman walked across the basketball court, picked up her purse from a table, and proceeded to the gym door through which Respondent had exited. By this time Respondent was outside the gym. Mrs. Freeman forcefully opened the gymnasium door behind which Respondent was standing, striking Respondent on the arm. As Mrs. Freeman exited the door, she and Respondent grabbed one another and a fight ensued. The girls basketball team members were at various positions inside the gymnasium at the time the scuffle between Respondent and Mrs. Freeman started. It is clear from the record, however, that each of the students were located behind Mrs. Freeman and, therefore, were not in the best of positions to observe the precise manner in which the conflict started. It is also equally clear that the physical confrontation between Respondent and Mrs. Freeman occurred quickly and spontaneously, and, as a result, the various eye-witness accounts contained in this record predictably contain varying and conflicting versions of the events leading up to and culminating in the scuffle between Respondent and Mrs. Freeman. During the course of their physical confrontation, Mrs. Freeman placed one of her hands on Respondent's throat and the other in Respondent's hair, and Respondent reciprocated, pushing Mrs. Freeman against the gymnasium wall. Several blows were exchanged between the two women. Although the gymnasium door had closed behind Mrs. Freeman, several of the basketball team members followed the two teachers out the door and attempted to separate them. After the fight began, there is no evidence that Respondent acted other than in defense of the actions of Mrs. Freeman. When the students were finally successful in separating the two combatants, Respondent began looking for her sunglasses, which had fallen off, and Mrs. Freeman retrieved her purse, which she had dropped during the altercation. Upon finding her purse, Mrs. Freeman called to several of the students to stand back, whereupon she removed a .22 calibre pistol from her purse, and fired at least two shots. Respondent, upon observing Mrs. Freeman to be armed, began to run from the school premises, retrieved her bicycle, and retreated to her home. Apparently unsatisfied with these results, Mrs. Freeman incredibly loaded several of the team members, including some of the students who testified in this proceeding, into her car, where she reloaded her weapon. Mrs. Freeman then proceeded to drive in a reckless manner, including running several stop signs, to Respondent's home. Upon arriving at Respondent's home, Mrs. Freeman pulled her car into the driveway, took her pistol, got out of her car, and again confronted the Respondent who was standing in her driveway with her two children. Respondent picked up a broom in her garage and got her two children to stand behind her in an attempt to shield them from Mrs. Freeman. Mr. McKahand, who was inside the home during this time, came outside, and ultimately was able to get Respondent inside their home. Mrs. Freeman then departed the McKahand residence, but shortly thereafter began making harassing telephone calls to the McKahand home. Later that afternoon, Mr. McKahand attempted to take Respondent to her part-time job in a local department store, but was prevented from doing so when Mrs. Freeman attempted to run the McKahand car off the street with her vehicle, and further fired upon the McKahands with her pistol. As previously indicated, Petitioner has charged Respondent with referring to Mrs. Freeman as a "bitch" during the course of their fight. Respondent denies making such a statement, and the only testimony in the record which would establish a finding that such a statement was made is contained in the conflicting testimony of Mrs. Freeman and Rachel Geathers, one of the student basketball players. Mrs. Freeman's testimony in this regard, which the Hearing Officer hereby finds unworthy of belief, was that Respondent referred to her as a "filthy bitch" as Mrs. Freeman exited the gymnasium door. Ms. Geathers' testimony was that Respondent referred to Mrs. Freeman as a "bitch" after the two combatants had exited the gym and enough time had passed to allow all of the basketball players to run through the door and outside the gym. Ms. Geathers' testimony in this regard is also rejected, in that several of the other students who were in a better position to observe and hear Respondent and Mrs. Freeman testified that they heard no such statement made. Accordingly, it is specifically concluded that the evidence in this case fails to establish Respondent's use of profanity in the presence of students as alleged in the Petition. There is no evidence in the record of this proceeding to indicate the Respondent's effectiveness as an employee of the Broward County School System has in any way been adversely affected by the above-described events. In fact, Respondent's principal and grade chairman both testified that Respondent is a good teacher, and they would welcome her back on the faculty of Perry Elementary School should she be absolved of the allegations involved in this proceeding. Even a cursory review of the record in this case will reveal sharp divergencies and conflicts in the testimony of several witnesses. In attempting to resolve these conflicts, the Hearing officer has observed the demeanor of the witnesses while testifying, their interest, if any, in the outcome of this proceeding, together with any motive, bias or prejudice which might affect their credibility. Further, the Hearing Officer has also taken into account the conditions existing at the time of the incident observed by the witnesses in weighing the credibility to be attached to the various accounts contained in this record. In so doing, the Hearing Officer has concluded that Respondent did not go to the Perry Middle School gymnasium seeking a confrontation with Mrs. Freeman. Indeed, the record clearly establishes that Respondent did not know Mrs. Freeman was even at the gymnasium on the date in question. Further, it is concluded, despite some evidence to the contrary, that Respondent did not summon Mrs. Freeman to follow her outside the gymnasium, but that Mrs. Freeman was induced to do so as a result of a student telling her that someone was outside the gym to see her. Finally, the quality as opposed to the quantity of the evidence in this case does not support a factual conclusion that Respondent, in fact, initiated the physical confrontation with Mrs. Freeman. Because of her conduct at the time of the incident, and further because of the inaccuracies and inconsistencies in Mrs. Freeman's testimony at the final hearing in this cause, her testimony, in its entirety, is worthy of little credibility. Because of this, her testimony that Respondent initiated the fight has been found unworthy of belief. The testimony of Mrs. Freeman's students, several of whom testified that the first aggressive gesture they saw was made by Respondent, is tainted both by their admitted allegiance to their teacher, Mrs. Freeman, and by their physical positioning which would not admit a particularly clear view of the incident. Conversely, the factual version of this incident given by Respondent in her testimony was, in every particular, more plausible than that contained in the testimony of either the students or Mrs. Freeman. At the time of the above- described incident, almost three and one-half months had passed since Respondent had last spoken in person with Mrs. Freeman. The Respondent did not know that Mrs. Freeman was at the gymnasium when she arrived there looking for her son. As a result, there could not have been any premeditated design on the part of Respondent to assault Mrs. Freeman and, due to the passage of time since her last contact with Mrs. Freeman, there is no apparent motive of record to explain a spontaneous assault. As a result, the only way to resolve the conflict in the testimony concerning how this altercation originated is to weigh the credibility of the various participants. Making such a choice is perhaps the most difficult task a finder of fact must face in a proceeding such as this, but by applying the aforementioned factors, the Hearing Officer has determined that in the areas of conflict, the testimony of the Respondent is more credible than that of either Mrs. Freeman or her students.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 16, 2000, and, if so, the discipline that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Palm Beach County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes. Mr. Navarro began working for the School Board as a custodian in July 1996. He was assigned full-time to the custodial staff at C.O. Taylor/Kirklane Elementary School ("Taylor/Kirklane Elementary") during the 1998-1999 and 1999- 2000 school years. The terms of Mr. Navarro's employment are governed by the provisions of the Agreement between The School District of Palm Beach County, Florida, and National Conference of Firemen & Oilers, Local 1227, July 1, 1999 - June 30, 2002 ("Union Contract"). On January 22, 1999, Mr. Navarro suffered an injury to his back while he was lifting several tables to put them on the stage in the school cafeteria; the tables slipped, and Mr. Navarro fell. Mr. Navarro experienced a sharp pain in his back that almost kept him from walking, but he finished his shift that night, which was a Friday night.2 Because of the pain in his back, Mr. Navarro could not get out of bed on Saturday or Sunday, and, on Monday, he went to see his personal doctor, J.J. Bogani, M.D. Dr. Bogani examined Mr. Navarro and prescribed pain medication. Dr. Bogani advised Mr. Navarro to file a workers' compensation claim with the School Board, which he did. As a result of his workers' compensation claim, Mr. Navarro was referred to a Dr. Goldberg, who examined and treated him on February 1, 1999. At the times material to this proceeding, Dr. Goldberg was one of the physicians who acted as a primary physician, or "gatekeeper," for employees of the School Board who were injured on the job and whose care was covered by workers' compensation insurance. Dr. Goldberg diagnosed Mr. Navarro's injury as lumbar strain. Mr. Navarro saw Dr. Goldberg again on February 3, 1999, and Dr. Goldberg prescribed a back belt for Mr. Navarro. On Mr. Navarro's third visit on February 8, 1999, Dr. Goldberg found that Mr. Navarro had reached maximum medical improvement with respect to the lumbar strain and that the lumbar strain had been resolved. Dr. Goldberg released Mr. Navarro to full-duty work, with an impairment rating of zero percent. Dr. Goldberg examined Mr. Navarro again on March 2, 1999, and Dr. Goldberg reaffirmed his diagnosis of lumbar strain, prescribed physical therapy for Mr. Navarro three times per week for two weeks and returned Mr. Navarro to full-duty work as of March 3, 1999. Dr. Goldberg did not examine Mr. Navarro subsequent to March 2, 1999. In early April 1999, Miguel Mendez, an attorney specializing in workers' compensation, contacted the company that administers the School Board's workers' compensation program on Mr. Navarro's behalf and requested that Mr. Navarro be evaluated by an orthopedist, Dr. Merrill Reuter. The administrator responded in a letter dated April 7, 1999, that Dr. Goldberg declined to recommend an orthopedic evaluation. Mr. Mendez was advised that Mr. Navarro could request a new gatekeeper physician, and a list of approved gatekeeper physicians was included with the letter. Mr. Navarro did not select a new gatekeeper physician until June 2000, even though he continued to have severe back pain. Dr. Bogani, Mr. Navarro's personal physician, treated him for his back problems from March 1999 until June 2000. Agartha Gragg was appointed principal at Taylor/Kirklane Elementary in July 1999, and she was apparently suspicious of Mr. Navarro's work attendance from the beginning of her tenure.3 One of the first changes she made as principal was moving the custodians' sign-in/sign-out log to her office so she could keep track of the comings and goings of the custodial staff. The School Board's personnel records show that Mr. Navarro was absent on annual leave, sick leave, sick leave charged to annual leave, or sick leave charged to "without pay,"4 on January 5 through 14, 18 through 21, and 27 and 28, 2000.5 On January 27, 2000, Dr. Bogani wrote a note on a page of his prescription pad certifying that Mr. Navarro was not able to return to work until January 31, 2000, and that Mr. Navarro needed to be restricted for two weeks, with no heavy lifting or bending. The School Board's records reflect that Mr. Navarro was absent on leave "without pay," sick leave charged to annual leave, or sick leave charged to "without pay" on February 4, 7, through 18, and 21, 2000. Dr. Bogani gave Mr. Navarro a certification dated February 7, 2000, indicating that he could return to work on February 8, 2000. In February 2000, Ms. Gragg received several complaints about Mr. Navarro's job performance from members of the teaching staff. The complaints involved Mr. Navarro's failure to keep his assigned areas clean, especially his failure to keep the floors clean. At the time, Mr. Navarro was working in the area that included the kindergarten classrooms, and one kindergarten teacher wrote Ms. Gragg a note praising the substitute custodian and advising Ms. Gragg that her area was much cleaner when Mr. Navarro was absent. The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, or sick leave charged to "without pay" on March 6, 7, and 13 through 17, 2000, except for one hour on March 13, 2000. Dr. Bogani gave Mr. Navarro a certification dated March 7, 2000, indicating that he could return to work on March 8, 2000. On March 13, 2000, Dr. Bogani gave Mr. Navarro a certification stating that Mr. Navarro would not be able to work during the week of March 13, 2000 and that he would be unable to lift more than 15 pounds on his return to work. In a letter dated March 7, 2000, Ms. Gragg directed Mr. Navarro to attend a meeting with her on March 13, 2000, to discuss his excessive absences and his unsatisfactory job performance. Ms. Gragg advised Mr. Navarro in the letter that he could bring a representative with him and that the meeting could result in disciplinary action. A note at the bottom of the letter states that Ms. Gragg's secretary, Rosa McIntyre, read the letter to Mr. Navarro in Spanish. Mr. Navarro attended the meeting with Lourdes Martinez, a paralegal employed in Mr. Mendez's office, as his representative; the other attendees were Ms. Gragg and Ms. McIntyre. The meeting was summarized in a letter to Mr. Navarro dated March 13, 2000, entitled "Verbal Reprimand With a Written Notation," in which Ms. Gragg noted that Mr. Navarro explained that both his absences and his poor job performance were due to medical reasons. The letter reflects that, at the meeting, Ms. Gragg directed Mr. Navarro to provide medical certification from his doctor for any future absences; directed Mr. Navarro to review cleaning procedures with the Interim Head Custodian at Taylor/Kirklane Elementary; recommended that Mr. Navarro contact Ernie Camerino's6 office to discuss leave options for which he might be eligible; recommended that Mr. Navarro contact the School Board's Employee Benefits and Risk Management office to discuss medical disability options that might be available to him; advised Mr. Navarro that his job performance would be reviewed on April 18, 2000; and, finally, advised Mr. Navarro that, if he failed to follow the directives and recommendations set forth in the letter, he would be subject to further discipline, including termination of his employment. The March 13, 2000, letter was prepared in both an English and a Spanish version and was sent to Mr. Navarro by certified mail. Ms. Gragg also noted in the March 13, 2000, reprimand letter that she might change the area Mr. Navarro was assigned to clean. Ms. Gragg did change Mr. Navarro's assignment, but, according to Mr. Navarro, the change was for the worse because he was required to carry a vacuum cleaner on his back and to vacuum carpeted floors, both of which put a lot of strain on his back. The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, and sick leave charged to "without pay" on April 5 through 7 and 28, 2000, and for four hours on April 27. On May 1, 2000, Dr. Bogani certified that Mr. Navarro was under his care from April 28 through May 2, 2000, and noted that his office should be called if there were any questions. On April 17, 2000, Ms. Gragg received a complaint from a member of the teaching staff that Mr. Navarro had not vacuumed the carpet in her classroom the previous week. A copy of the complaint was provided to Mr. Navarro, and he went to Ms. Gragg's office on April 17, 2000, to discuss the complaint. In a letter dated April 17, 2000, Ms. Gragg requested that Mr. Navarro meet with her to discuss his job performance and any concerns he might have regarding his job. This letter was prepared in both an English version and a Spanish version, and Mr. Navarro signed the acknowledgement that he had received the letter on April 17. Mr. Navarro did not, however, meet with Ms. Gragg during the month of April 2000.7 The School Board's records reflect that Mr. Navarro was absent on sick leave charged to annual leave or sick leave charged to "without pay" on May 1, 2, 11, 12, 15 through 19, 26, and 30, 2000; Mr. Navarro was also absent for five hours on both May 22 and 25, 2000. On May 11, 2000, Dr. Bogani provided certification that Mr. Navarro would be out of work on May 11 and 12, 2000, "for health reasons," noting that his office should be called if there were any questions. On May 15, 2000, Dr. Bogani provided certification that Mr. Navarro would not be able to work on May 15 through 19, 2000, because of "severe muscle spasm in lumbar spine," noting that Mr. Navarro would not be able to vacuum for at least a month. On May 26, 2000, Dr. Bogani provided certification that Mr. Navarro had been under his care for back problems and that Mr. Navarro would be under his care from May 26 through 30, 2000. In a letter dated May 11, 2000, Ms. Gragg notified Mr. Navarro that he was to attend a meeting on May 17, 2000, to discuss allegations of excessive absences and to review his job performance, that he could bring a representative to the meeting, and that the meeting could result in disciplinary action being taken against him. The letter was prepared in both an English and a Spanish version. Meanwhile, Ms. Gragg completed Mr. Navarro's annual evaluation in which she gave him an overall unsatisfactory rating and rated his performance unsatisfactory in several categories, including attendance. Ms. Gragg set forth Mr. Navarro's deficiencies on a separate sheet attached to the annual evaluation, as follows: Job Knowledge You failed to effectively clean the "gang" bathrooms in the main building May 15- May 23, 2000. [Correct dates are April 15- April 23, 2000][8] You failed to effectively clean the floors in Bldg 200 on March 23, April 17-May 25, 2000. [Correct dates are April 17-April 25, 2000, see endnote 9.] Self Management/Self Motivation You did not complete assigned duties in a timely manner. Restrooms in the main building were not cleaned on May 15-23, 2000. [Correct dates are April 15-April 23, 2000, see endnote 9.] Interpersonal effectiveness You failed to complete your assigned duties, thus causing your co-workers to assume extra responsibilities. Mr. Angel Rivera, Head Custodian, was required to clean you assigned areas on March 23, April 17-May 25, 2000. [Correct dates are April 15-April 25, 2000, see endnote 9]. Ms. Gragg also noted on the annual evaluation form that Mr. Navarro had been absent 53 days during the 1999-2000 school year and that she had previously recommended that Mr. Navarro inquire about his eligibility for appropriate leave. The evaluation form was signed by Ms. Gragg and dated May 18, 2000, and, at some point, Ms. Gragg discussed the evaluation and the specific deficiencies and improvement strategies with Mr. Navarro. A note dated May 19, 2000, signed by Ms. McIntyre, indicates that the evaluation was translated into Spanish for Mr. Navarro and that Mr. Navarro refused to sign the form. In a letter dated May 23, 2000, Ms. Gragg issued Mr. Navarro a written reprimand for his failure "to report to work in accordance with published rules and the duties and responsibilities" of his job. Specifically, Ms. Gragg noted that Mr. Navarro had been put on notice on March 20, 2000, that he was to report to work on a regular basis; that he had been absent 14.5 days since March 20, 2000; that he had been absent a total of 53 days during the school year; and that he was absent on May 18 and 19, 2000, but did not call to inform her office of his absence. Mr. Gragg advised Mr. Navarro in this letter that, if he engaged in similar conduct in the future, he would be subject to further discipline, including termination of his employment. The letter was prepared in both an English and a Spanish version. It is not clear from the letter whether Ms. Gragg was reprimanding Mr. Navarro for excessive absences or for failing to call to inform her office of his absences on May 18 and 19, 2000. Ms. Gragg was advised in a letter from a teacher dated May 25, 2000, that Mr. Navarro had failed to empty the garbage can in her classroom on May 24, 2000, and Ms. Gragg provided a copy of the letter to Mr. Navarro. Throughout March, April, and May 2000, Mr. Navarro was experiencing problems with his back, and he was able to work only when he took pain medication, which made him feel drowsy and lethargic. Mr. Navarro visited Dr. Bogani often as a result of the pain, and he always provided to Ms. Gragg Dr. Bogani's medical certifications for his absences.9 Mr. Navarro was also becoming increasingly distraught because of what he considered Ms. Gragg's unfair criticisms of his job performance and her apparent inability to understand the extent of his medical problems. He was particularly affected by his unsatisfactory annual evaluation because he had received satisfactory evaluations since he began working for the School Board. On June 5, 2000, Mr. Mendez, the attorney handling Mr. Navarro's workers' compensation claim, contacted the School Board's workers' compensation administrator on Mr. Navarro's behalf and requested that Dr. James B. Phillips be assigned as Mr. Navarro's gatekeeper. An appointment was arranged for Mr. Navarro with Dr. Phillips for June 8, 2000. Mr. Navarro advised Ms. McIntyre that he would be absent on June 8, 2000, for a doctor's appointment.10 Ms. McIntyre asked that Mr. Navarro complete a "Leave/Temporary Duty Elsewhere" form requesting leave for June 8, 2000, and he refused; this form is a School Board form that must be completed before an employee can be approved for any type of leave. Ms. Gragg sent Mr. Navarro a memorandum dated June 7, 2000, in which she directed him to submit a completed leave form to her "today" and advised him that failure to do so would be considered insubordination and would subject him to discipline. Mr. Navarro submitted a leave form dated June 7, 2000, but he did not indicate on the form the type of leave he requested or the amount of time he would be absent. Ms. Gragg disapproved the request on June 7, 2000, with the notation "Incomplete TDE." Mr. Navarro gave no explanation for his failure to fill out the leave request form completely. Dr. Phillips first saw Mr. Navarro on June 8, 2000, and Mr. Navarro explained to Dr. Phillips that he had injured his back on the job on January 22, 1999. Dr. Phillips did several tests and diagnosed Mr. Navarro as having a "lumbosacral sprain, chronic," but also noted that Mr. Navarro most likely magnified the symptoms of his back injury. Dr. Phillips also recommended that Mr. Navarro have a MRI. Dr. Phillips completed a Workers' Compensation Work Status Report in which he indicated that Mr. Navarro could do light-duty work with the restrictions that he was not to use a vacuum cleaner or to lift more than 15 pounds. Dr. Phillips directed Mr. Navarro to give the form to his supervisor at work. On June 9, 2000, Mr. Navarro took this form to Ms. Gragg's office at Taylor/Kirklane Elementary. At approximately 10:15 a.m., Ms. McIntyre called Linda Meyer, a claims technician for the School Board's workers' compensation program, and advised her that Dr. Phillips had placed Mr. Navarro on light-duty restrictions and that there were no such assignments available at the school. One of Ms. Meyer's responsibilities is to find light-duty placements for School Board employees injured on the job who cannot return to their jobs because of work restrictions imposed by a doctor participating in the School Board's workers' compensation program. Ms. Meyer told Ms. McIntyre to send Mr. Navarro to her office immediately, and Ms. Meyer asked Ms. McIntyre to send Mr. Navarro's work restrictions to her by facsimile. Ms. Meyer found a light duty job for Mr. Navarro that met his work restrictions. Mr. Navarro was to work with the medical records clerk in the School Board's Risk Management office, Sheila Rick; the job required Mr. Navarro to sit at a table, take medical records out of files, count the documents, and return them to the files. Ms. Riczko speaks fluent Spanish, and it would not have been necessary for Mr. Navarro to speak or read English to do this job. Dr. Phillips is of the opinion that Mr. Navarro would have had no physical problem doing this work. When Mr. Navarro had not reported to her office by noon on June 9, 2000, Ms. Meyer telephoned Ms. McIntyre to confirm that Mr. Navarro had been told where to report for his assignment; Ms. McIntyre told Ms. Meyer that Mr. Navarro had left Taylor/Kirklane Elementary at approximately 10:45 a.m. Shortly after noon, Ms. Meyer received a telephone call from Carolyn Killings, Mr. Navarro's union representative, asking about Mr. Navarro's light-duty work assignment. Ms. Killings told Ms. Meyer that Mr. Navarro was in her office; Ms. Meyer told Ms. Killings to tell Mr. Navarro that she had a light-duty work assignment for him and that he was to report to her office. Mr. Navarro did not report to Ms. Meyer's office on June 9, 2000. Ms. Meyer prepared a letter advising Mr. Navarro that he was to report for his temporary light-duty work assignment, and the letter was prepared in both an English version and a Spanish version. In the letter, Ms. Meyer told Mr. Navarro where to report and confirmed that the assignment satisfied the restrictions imposed by Dr. Phillips on June 8, 2000, that he not lift anything weighing more that 15 pounds and that he do no vacuuming. Ms. Meyer further advised Mr. Navarro in this letter that failure to report for this assignment might result in termination of his workers' compensation benefits and in disciplinary action by the School Board, including termination of employment. Ms. Meyer also attached a light-duty sign-in sheet and directed Mr. Navarro to complete the sheet each day. Also on June 9, 2000, after Mr. Navarro had presented to Ms. McIntyre the work restrictions imposed on June 8, 2000, by Dr. Phillips, Ms. Gragg prepared a Written Letter of Reprimand for actions involving repeated insubordination. Specifically, Ms. Gragg reprimanded Mr. Navarro because he left campus at his regular break time of 10:00 a.m. but did not return until 10:45 a.m., with a sandwich.11 Ms. Gragg noted in the letter that she had questioned Mr. Navarro as to why he returned to campus past the end of his break time and how he intended to eat and do his work at the same time. According to the letter, Mr. Navarro explained that he was hungry and had to eat. Ms. Gragg referred in the letter to Mr. Navarro's failure to heed her warning on June 8, 2000, to correct his actions, and she advised Mr. Navarro that she was referring the matter for a "District review" with respect to the next step in the disciplinary process.12 A handwritten note at the bottom of the letter states that Ms. McIntyre "verbally interpreted" the letter into Spanish for Mr. Navarro. Ms. Gragg followed up her June 9, 2000, Written Reprimand with a letter dated June 12, 2000, to the Director of the School Board's Employee Relations Department. In the letter, Ms. Gragg stated: "I have issued a Written Reprimand and the employee has repeated the misconduct. Therefore, I am requesting a District review for the purpose of determining the next step in the discipline process." Ms. Gragg also noted in the June 12, 2000, letter that Mr. Navarro had not reported to the Risk Management office for light duty or to Taylor/Kirklane Elementary for regular duty. Ms. Gragg also telephoned a complaint regarding Mr. Navarro to the School Board's Office of Professional Standards on June 13, 2000. Ms. Gragg charged Mr. Navarro with unauthorized absence and insubordination, based specifically on his refusal on June 7, 2000, to complete a leave form for his doctor's appointment on June 8, 2000, and on Mr. Navarro's failure to respond to her directive on June 9, 2000, that he report to Ms. Meyer's office for a light-duty work assignment. In a letter dated June 15, 2000, Ms. Gragg advised Mr. Navarro that she was concerned that he had not reported to Ms. Meyer's office for his light-duty work assignment or to Taylor/Kirklane Elementary. She asked that Mr. Navarro call her office regarding these absences. This letter was prepared in both an English version and a Spanish version. On June 15, 2000, Ms. Meyer asked Ms. Riczko to telephone Mr. Navarro's home to ask why he had not reported for his light-duty assignment. Ms. Riczko spoke with Mrs. Navarro, who said that Mr. Navarro would be in on Monday, June 19, 2000. On June 19, 2000, Mrs. Navarro telephoned Ms. Riczko and told here that Mr. Navarro had an appointment with his attorney and would not be reporting for his work assignment that day. Mr. Navarro did, however, report to Ms. Meyer's office late in the day on June 19, 2000. Mr. Navarro told Ms. Meyer that he could not work because of the medication he was taking. Ms. Meyer advised Mr. Navarro that he was to have reported for his light-duty work assignment on June 9, 2000, and that, by refusing the light-duty work, he was jeopardizing his workers' compensation benefits. Ms. Meyer suggested that Mr. Navarro talk to someone in Ernie Camerino's office about taking an extended medical leave. Mr. Camerino's office is responsible for processing retirements and leaves of absence for the School Board. Mr. Navarro picked up a set of leave forms from Mr. Camerino's office on June 19, 2000. On June 20, 1999, Mr. Navarro visited Dr. Phillips' office and requested that Dr. Phillips authorize him to take two weeks off of work. Dr. Phillips refused and again advised Mr. Navarro that he could return to light-duty work. Mr. Navarro submitted a Request for Leave of Absence Without Pay to Ms. Gragg on June 22, 2000, in which he asked for personal leave from June 9, 2000, to July 9, 2000. Ms. Gragg denied Mr. Navarro's request in a letter dated June 22, 2000, which was prepared in both an English and a Spanish version. The reasons given by Ms. Gragg for her refusal to approve Mr. Navarro's leave request were as follows: (1) Mr. Navarro did not request the leave in advance; (2) the leave request form was submitted on June 22, 2000, for leave extending from June 9, 2000, to July 9, 2000, and she could not backdate a personal leave request; and (3) Mr. Navarro did not discuss or provide proper documentation on his leave form. Finally, in the June 22, 2000, letter, Ms. Gragg directed Mr. Navarro to report for work on June 26, 2000. Mr. Navarro wrote a letter to Ms. Gragg dated July 26, 2000, in which he explained that he requested personal leave because he did not feel emotionally stable as a result of his problems and that his personal doctor, Dr. Bogani, had given him documents that showed he approved the leave. Mr. Navarro also advised Ms. Gragg that he was scheduled to have an MRI on June 28, 2000,13 and would receive treatment for his back, depending on the results of the test. Mr. Navarro reminded Ms. Gragg that she had prohibited him from bringing his medication to school and that it was the only medication he took, and that it helped him work "almost normal." The contents of this letter had no effect on Ms. Gragg's decision to deny Mr. Navarro's request for leave without pay. Mr. Navarro's MRI was completed on July 9, 2000, and, on July 10, 2000, Dr. Phillips went over the results with Mr. Navarro. The MRI showed that Mr. Navarro had a disc herniation at L5-S1, which displaced the S1 nerve posteriorally, with severe right foraminal narrowing. In Dr. Phillips' opinion, Mr. Navarro had a serious problem with his back, and he modified Mr. Navarro's work restrictions to provide that he could not lift anything weighing more than 10 pounds. In a letter dated July 10, 2000, sent to Mr. Navarro by certified mail and in both an English and a Spanish version, Ms. Meyer noted that he had not yet reported for his light-duty work assignment, and she reiterated the penalties that could be imposed for his failure to report. On July 14, 2000, Ms. Meyer sent another letter to Mr. Navarro, by certified mail and in both an English version and a Spanish version, advising him that he had been scheduled to report for his light-duty work assignment on June 9, 2000, that he had not done so, and that the missed days would not be approved as related to his workers' compensation claim. Ms. Meyer again urged Mr. Navarro to report for work immediately. Mrs. Navarro telephoned Ms. Meyer's office on July 19, 2000, and spoke with Ms. Riczko about Mr. Navarro's light-duty work assignment. Ms. Riczko told Mrs. Navarro that Mr. Navarro must report to Ms. Meyer's office the next morning at 8:00 a.m. to start his work assignment. Mrs. Navarro said that she would tell her husband. Mr. Navarro reported to Ms. Meyer's office at 8:45 a.m. on July 20, 2000; his wife accompanied him. Mr. Navarro told Ms. Meyer and Ms. Riczko, who was acting as interpreter, that he was not able to work because he was taking pills that made him very lethargic and sleepy. He said that he intended to call Dr. Phillips and ask for a different type of pain medication. Ms. Meyer advised Mr. Navarro that it might be best for him to ask for a leave of absence; Ms. Meyer reiterated that he must report for his light-duty assignment if he did not get approved for a leave of absence. Mr. Navarro was told to report at 8:00 a.m. on July 24, 2000, for his light-duty work assignment. He telephoned at 8:45 a.m. and advised Ms. Riczko that he had taken his wife to the hospital emergency room and needed to stay with her. Ms. Riczko heard nothing further from Mr. Navarro, and he never reported to her office for the light-duty work assignment. After reviewing the results of Mr. Navarro's MRI, Dr. Phillips had requested that Mr. Navarro be examined by a neurosurgeon, and, on August 16, 2000, Dr. Brodner examined Mr. Navarro. Dr. Brodner advised Mr. Navarro that he needed surgery on his back and that there was a 20-percent chance that the surgery would cause paralysis in his legs. As of the date of the hearing, Mr. Navarro had refused the surgery because of this risk. Meanwhile, School Board personnel investigated the allegations made by Ms. Gragg in her telephoned complaint of June 13, 2000, and a report of the investigation was submitted to the School Board's Case Management Review Committee for a determination of probable cause. The committee found probable cause at a meeting held on July 23, 2000, and recommended that Mr. Navarro be terminated from his employment with the School Board. Paul LaChance, the Director of the School Board's Office of Professional Standards, arranged to meet with Mr. Navarro on August 15, 2000, in order to go over the investigation report and the committee's recommendation and to allow Mr. Navarro the opportunity to respond to the charges against him. Mr. Navarro presented Mr. LaChance with a letter written in Spanish, which was later translated into English for Mr. LaChance, in which he offered his explanation for his absences and his version of the events leading up to Ms. Gragg's complaint and the events relating to his failure to report for his light-duty work assignment. Mr. LaChance reviewed Mr. Navarro's letter and requested that Ms. Gragg respond to certain allegations against her that Mr. Navarro had included in the letter. After reviewing Ms. Gragg's response to Mr. Navarro's letter, Mr. LaChance recommended that Mr. Navarro be suspended without pay and that his employment with the School Board be terminated. In a document entitled "Notice of Suspension and Recommendation for Termination of Employment," dated September 8, 2000, and signed by Dr. Marlin, Mr. Navarro was notified that Dr. Marlin would recommend to the School Board that it terminate Mr. Navarro's employment at its September 20, 2000, meeting. The School Board approved Dr. Marlin's recommendation and immediately suspended Mr. Navarro without pay. Mr. Navarro believed that he was not physically or emotionally able to do even light-duty work, and the School Board's records show that Mr. Navarro did not report for either regular work or his light-duty work assignment from June 9, 2000, through September 20, 2000, when he was suspended from his employment. Summary The evidence presented by the School Board is not sufficient to establish with the requisite degree of certainty that Mr. Navarro abused his sick leave privileges. The School Board did not present any evidence to establish that Mr. Navarro was absent for reasons other than medical reasons, and, indeed, the School Board classified Mr. Navarro's absences almost exclusively as sick leave, sick leave charged to annual leave, or sick leave charged to "without pay." There is no question that Mr. Navarro used his sick leave as he earned it, and Ms. Gragg was justified when she directed Mr. Navarro in the March 13, 2000, Verbal Reprimand With a Written Notation to provide medical certifications for any future absences. Mr. Navarro submitted such certifications from Dr. Bogani for most of his absences subsequent to March 13, 2000, although he did not provide medical certifications for his absences on April 5, 6, and 7, 2000; for 4 hours on April 27, 2000; or for five hours on May 22 and May 25, 2000. These lapses are not sufficient to support a finding that Mr. Navarro abused his sick leave privileges, and there is no evidence to establish that Ms. Gragg advised Mr. Navarro that the certifications were insufficient or advised him that he had failed to provide the certifications timely. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Navarro was willfully absent from duty without leave from June 9, 2000, until September 20, 2000, when the School Board suspended him and termination proceedings were initiated. Ms. Meyer advised Mr. Navarro of his obligation to report or face possible disciplinary action in her letter dated June 9, 2000, which was sent to Mr. Navarro in both an English and a Spanish version. Mr. Navarro was repeatedly directed to report for work by Ms. Gragg and Ms. Meyer, both verbally and in writing, and he advised that his failure to report for his light-duty work assignment would jeopardize both his workers' compensation benefits and his employment with the School Board. Credence is given to Mr. Navarro's belief that he was emotionally and physically unable to work subsequent to June 8, 2000, but he failed to explain why he did not apply for a leave of absence until June 22, 2000. Ms. Gragg had advised him to inquire about his eligibility for leave in her reprimand letter of March 13, 2000, and Ms. Meyer urged him to talk with Mr. Camerino's office regarding a leave of absence on several occasions. Mr. Navarro did not apply for personal leave without pay until June 22, 2000, and he requested leave from June 9, 2000, through July 9, 2000. When Ms. Gragg denied the leave, Mr. Navarro did not file a grievance pursuant to the Union Contract, he simply did not report for work. Mr. Navarro was aware of the consequences of his failure to pursue his leave request or to report for work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension without pay of Miguel Navarro and terminating his employment with the School Board. DONE AND ENTERED this 22nd day of August, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 22nd day of August, 2001.
The Issue Whether Lisa Parker (Respondent) committed the acts alleged in the Miami-Dade County School Board's (School Board) Notice of Specific Charges and, if so, the discipline that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Respondent has been employed by the School Board since 1986. During the time relevant to this proceeding, Respondent was the lead staffing specialist for the School Board's ESE program in Region I. During the 2008-2009 school year, Michael J. Krop Sr. High School (Krop) was a school for which Respondent had responsibility. The School Board's ESE program provides services to students who are determined eligible for such services. The eligibility determination is made by a staffing committee consisting of a minimum of three School Board professional employees. The School Board has adopted the following procedure pertaining to the eligibility staffing committee2/: A staffing committee, utilizing the process of reviewing student data including but not limited to diagnostic, evaluation, educational, or social data, determines a student's eligibility. A minimum of three (3) professional personnel, one (1) of whom is the district administrator of exceptional students or designee, meet as a staffing committee. For students being considered for eligibility as a student with a disability, the parent is invited to participate in this meeting . . . . If a student is determined to be eligible for services through the ESE program, an IEP team is assembled to conduct an IEP meeting and to prepare an IEP for the student. The parents of the student are entitled to attend the IEP meeting as part of the IEP team. A local education agency (LEA) representative is a required member of an IEP team. The other required members of the IEP are a general education teacher, a special education teacher, and an evaluation specialist.3/ Relevant to this proceeding, a general education teacher and an evaluation specialist can be excused from the IEP meeting before the close of the meeting. The members of a staffing committee that determines eligibility can also constitute the members of an IEP team. An eligibility determination is frequently made with an IEP team meeting ensuing immediately thereafter. There is nothing unusual about an eligibility determination and an initial IEP being accomplished on the same day. "Specific learning disability" and "other health impaired" are two categories that qualify a student for ESE services.4/ School-based staffing specialists are assigned to schools to hold staffing meetings to determine eligible for services from the ESE program, and to write an IEP for a student found to be eligible. Generally, a lead staffing specialist is a position of support for school-based staffing specialists in the areas of organization, scheduling, and compliance with relevant substantive and procedural requirements of the Individuals with Disabilities Education Act, Florida Statutes, and rules. A lead staffing specialist also provides professional development to school-based personnel through in- service training and individual support to schools. A lead staffing specialist is responsible for ensuring that eligibility determinations were based on adequate documentation in a timely fashion. On June 27, 2008, the School Board published a "Memorandum" that solicited applicants for the position of "lead staffing specialist." That Memorandum contained the following under the heading "Job Responsibilities Include": Serve as the Local Education Agency (LEA) Representative of the Multi-Disciplinary Team for eligibility, placement and dismissal decisions for students in the least restrictive environment. Collect and review staffing data and allocation of personnel to facilitate adherence to required procedures and timelines for staffings. Assist the SPED Instructional Supervisor in monitoring unit allocations, program enrollment and suspension and inclusion percentages. Demonstrate knowledge in procedural safeguards, due process and mediation procedures. Consult with the Regional Center SPED Instructional Supervisors to resolve issues related to the provision of programs and services to individual students. Provide on-site technical assistance to teachers, administrators and support personnel in areas involving program planning, curriculum and instructional techniques for students. Provide program assistance to parents and community agencies. Identify school needs regarding enrollment, unit allocation, equipment, materials and transportation. Plan and conduct regularly scheduled staff meetings to maintain communication and provide for the dissemination of information. Serve as the Region Center SPED Instructional Supervisor's designee in the identification and resolution of problems, issues and concerns related to special education services. When necessary, a lead staffing specialist is also expected to serve as the LEA representative at a school-based staffing to determine a student's eligibility for services from the ESE program and to participate in the preparation of an IEP as a member of the IEP team. A lead staffing specialist who serves as the LEA at an initial eligibility meeting or an IEP meeting is charged with ensuring that the School Board's policies are followed and that all necessary documentation is obtained. It is the School Board's responsibility to ensure that its policies comply with all applicable Federal and Florida statutes and rules. The LEA at an IEP meeting has the responsibility of preparing a Matrix of Services form based on the services provided by the IEP. The completion of the form results in the generation of a number that is used to determine the level of funding the School Board receives for the student. For ease of reference, that number will be referred to as the matrix number. A higher matrix number generates more funding than a lower number. A matrix number is also used to determine the level of funding for a McKay Scholarship. Again, a higher matrix number will result in greater funding. Respondent has been adequately trained in the procedures for determining eligibility for ESE program services, for the completion of IEPs, and for the completion of Matrix of Service forms. At the times relevant to this proceeding, Ms. S.-N. served as the School Board's Instructional Supervisor of ESE and was Respondent's direct supervisor. In addition to their professional relationship, Ms. S.-N. and Respondent had been close personal friends for over 25 years at the time of the formal hearing. S.N. is the daughter of Ms. S.-N.. At the request of Ms. S.-N., Respondent served as the LEA for the eligibility staffing and subsequent creation of an IEP for S.N. at Krop on October 15, 2008. Also at Ms. S.-N.'s request, Respondent served as the LEA on an IEP team that prepared a second IEP for S.N. on February 9, 2009. Prior to the eligibility determination on October 15, 2008, S.N. was a student at American Heritage Academy, a private school in Plantation, Broward County, Florida. Prior to the eligibility determination, Dr. Laurie Karpf, a psychiatrist, had diagnosed S.N. with attention deficit hyperactivity disorder (ADHD) and mood disorder, NOS (not otherwise specified). Dr. Karpf prescribed for S.N. medication to treat ADHD.5/ Prior to the eligibility determination, Dr. Garnett Reynolds, a speech and language pathologist employed by the School Board, screened S.N. to determine whether S.N. had speech or hearing deficits. Dr. Reynolds determined that S.N. had no such deficits. Dr. Reynolds did not participate further in the eligibility determination or in drafting either IEP at issue. On August 22, 2008, Dr. Yolanda Sklar, a school psychologist employed by the School Board, evaluated S.N. at the request of Ms. S.-N. Because S.N. was enrolled in a private school in Broward County, Dr. Sklar conducted the evaluation in her capacity as a "clinical psychologist," using the DSM-IV model, as opposed to the capacity as a school psychologist using School Board protocols. Dr. Sklar's report stated the following as the "Reason for Referral": [S.N.] is a 15 year, nine month old female who was referred for a psychological evaluation for reasons of academic difficulties in school. [S.] is enrolled in tenth grade at American Heritage School. Information was requested regarding [S.'s] level of intellectual functioning, academic achievement, and her learning aptitude in order to address the possibility of learning disabilities. [S.] presents with a history of attentional difficulties and academic problems in school. She has struggled throughout her schooling years, but her difficulties in school have become more evident at the higher grades, with higher academic demands and expectations. [S.] also has Attention Deficit Disorder. She is currently on medication (Focalin) for treatment of attentional difficulties and she appears to be responding well to the medication. The purpose of this evaluation is to provide diagnostic clarification and assist with determination of [S.'s] educational needs. Recommendations are provided based on [S.'s] learning abilities and her instructional needs in order to insure her academic potential and her success in school. Ms. S.-N. had, at times, been Dr. Sklar's direct supervisor. Dr. Sklar felt intimated when Ms. S.-N. requested that she evaluate S.N. Nevertheless, Dr. Sklar's report and her testimony at the formal hearing established that she evaluated S.N. in a thorough and professional manner. Dr. Sklar administered to S.N. the following tests: Wechsler Intelligence Scale for Children-IV Woodcock-Johnson-III Tests of Achievement Woodcock-Johnson-III Tests of Cognitive Ability Beery Developmental Test of Visual- Motor Integration-V Behavior Assessment System for Children, Parent Rating Behavior Assessment System for Children, Self-Report Sentence Completion Test-Adolescent Clinical Interview and Observations Dr. Sklar's report contained the following "Summary and Conclusions": [S.N.] is a 15 year, nine month old female who is functioning within the Average range of intellectual classification. Assessment of learning aptitude indicates a learning disorder or learning disability in processing speed. Academically, [S.] is not performing to the best of her ability and not reaching her potential due to learning disabilities. She is achieving significantly below her level of expectancy in reading fluency. Psychometric findings strongly support evidence of a specific learning disability in processing speed. A childhood history of Attention Deficit Disorder is also supported. The overall implications are that [S.] will require accommodations in the classroom and in testing situations to fully utilize her intellectual potential. The failure to accommodate may lead to academic performance well below her expected ability. Based on findings, it is imperative that [S.] receive individualized instructional adjustments in the classroom and test accommodations in order to meet her educational goals. Results and clinical impressions are consistent with a diagnosis of Attention Deficit Disorder/Hyperactivity Disorder, Predominately Inattentive Type, and Learning Disorder NOS (Not Otherwise Specified). Dr. Sklar's report contained the following under the heading "Diagnostic Impressions": The following diagnostic criteria is met in accordance with the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV-TR), American Psychiatric Association: Axis I: 314.00 Attention Deficit/Hyperactivity Disorder, Predominately Inattentive Type Axis II: 315.9 Learning Disorder, NOS Dr. Sklar's report contained the following under the heading "Educational Strategies and Recommendations": [S.] would benefit from educational software programs that are multi-modal and emphasize visual skills, as her visual memory processing skills appear to be her strongest learning modality. Software programs, such as Talking Books would be beneficial. As [S.] has a history of Attention Deficit Disorder, it is imperative that directions be specific and given clearly. It may be necessary to repeat directions in order to assure attending skills and comprehension of instructions regarding the task at hand. In light of deficits in processing speed, it is imperative that [S.] receive time accommodations in classroom assignments, exams, and standardized tests. Restrict the amount of work required on a single page if possible. Teaching techniques should begin with identification of individual parts, moving to integrated wholes. Keep visually presented material simple in format and uncluttered by excessive stimuli. Classroom lectures may be taped in order of [S.] to play back lectures and take notes at her own pace. Strategies that may facilitate written tasks include providing outlines and visual cues such as color coding, numbering lines, etc. Educational materials and tools, such as a computer/word processor, calculator, tape recorder, spell-checker, ruler, etc., should be allowed as deemed necessary. Dr. Sklar's report does not reflect an opinion as to whether S.N. met the eligibility criteria for ESE services in Miami-Dade public schools. At the formal hearing Dr. Sklar testified that S.N. did not meet criteria for eligibility under the SLD category. The School Board uses a discrepancy model, which measures the statistical difference from IQ and level of academic functioning. The difference in S.N.'s evaluation was one-half point short of the differential required by the School Board, which determined that she was not eligible, but suggested that further testing was warranted. Prior to October 15, 2008, Ms. S.-N. instructed Respondent to determine S.N.'s eligibility for ESE services and to prepare an IEP for her daughter as soon as possible. Respondent could not remember the date that conversation took place, but it is clear that Respondent worked on very short notice. The School Board contends that Respondent acted to the detriment of other students who were waiting to be evaluated for eligibility of ESE services or for an IEP by giving S.N. priority over those other students. The School Board's contention is rejected because there was insufficient evidence to establish that any student's staffing was delayed by Respondent's actions. Ms. S.-N. enrolled S.N. as a student at Krop on October 15, 2008. The enrollment record reflected that S.N. resided at an address in Miami-Dade County, Florida, within the Krop school zone. That was a false address. Although Respondent utilized that false address on the October 15, 2008, IEP, Respondent testified, credibly, that she pulled the address from the school computer. Respondent had no duty to verify the accuracy of that address. There was no evidence that Respondent knew or should have known that the address was false. In response to Ms. S.-N.'s instruction, Respondent attempted to convene an eligibility team meeting and an IEP meeting at Krop on October 15, 2008. The meeting was held in the office of Elissa Rubinowitz, the Program Specialist (for ESE) at Krop. On October 15, 2008, Respondent generated an IEP for S.N. that reflected that S.N. had been determined eligible for the following ESE programs: "Specific Learning Disabilities" and "Other Health Impaired." Under the heading "Signatures and Positions of Persons Attending Conference [sic]", the following signatures appear with the positions of each signer in parenthesis: Ms. S.-N. (parent), S.N. (student), Respondent (LEA representative), Ms. Rubinowitz (ESE teacher), Dr. Richard Rosen (evaluation specialist), and Lawrence Davidson (general education teacher). Mr. Davidson was not at the staffing committee team meeting that determined S.N.'s eligibility for services, nor did he attend the IEP meeting at Krop on October 15, 2008. Mr. Davidson's office at Krop was next door to Ms. Rubinowitz's office. After Respondent completed the IEP without Mr. Davidson's presence or input, Ms. Rubinowitz went to Mr. Davidson's office, gave him the IEP, and asked him to sign the IEP as the general education teacher. Mr. Davidson signed the IEP as the general education teacher.6/ The IEP reflects that S.N. was to be placed in all general education classes at Krop. Consequently, a general education teacher should have been a participating member of the IEP team. Because there was no general education teacher, the IEP team was inappropriately composed. Similarly, Dr. Rosen was not at Krop on October 15, 2008. On the afternoon of October 15, 2008, Dr. Rosen happened to be at the Region I office when Ms. S.-N. asked him to come into her office to review Dr. Sklar's psychological report. The only persons present were Ms. S.-N., Respondent, and Dr. Rosen. Dr. Rosen has known Dr. Sklar for many years and quickly reviewed her report. Ms. S.-N. had no questions about the report. After his review, Dr. Rosen signed the IEP as the evaluation specialist. Although Dr. Sklar is a school psychologist employed by the School Board, her report pertaining to S.N. is properly considered as being a private psychological evaluation because Dr. Sklar's evaluation of S.N. was not prepared pursuant to School Board protocol. Either Dr. Rosen or Respondent should have signed a form styled "Receipt of Private Psychological Evaluation," which would have acknowledged receipt of the private evaluation from Ms. S.-N. The form contains the following caveat: "A copy of this form should be kept in the student's cumulative folder." Respondent failed to ensure that this form was signed and placed in S.N.'s cumulative folder. Dr. Rosen should have completed and signed a form styled "Review of Psychological Reports Originating Outside Miami-Dade County Public Schools." That form includes a section for the school psychologist to determine whether the report is sufficiently recent and whether the evaluator meets professional background criteria. At the bottom of the form is a note that "This form is required for all psychological evaluations originating outside M-DCPS." Respondent failed to ensure that Dr. Rosen completed and signed that form. The determination that S.N. met ESE eligibility was not made by a properly convened staffing committee. There were three persons employed by the School Board at the Krop meeting (Respondent, Ms. Rubinowitz, and Ms. S.-N.). Likewise, there were three persons employed by the School Board at the Region I office meeting (Respondent, Dr. Rosen, and Ms. S.-N.). Ms. S.- N. attended both meetings as a parent; not as a School Board professional. Ms. Rubinowitz and Dr. Rosen did not participate in the same meeting. Consequently, no staffing meeting as contemplated by the School Board's policies occurred because a minimum of three School Board professionals did not meet as a staffing committee to determine eligibility. There was a dispute as to whether the staffing committee had adequate information to determine that S.N. met the criteria for ESE services under the SLD category or under the OHI category. That dispute is resolved by finding that a properly convened staffing committee had the right to rely on Dr. Sklar's report, on Dr. Karpf's records, and on input from Ms. S.-N. in concluding that S.N. was eligible under both categories. Further, the available information would have been sufficient for a properly convened staffing committee to determine that S.N. was eligible for ESE services under both categories. There was insufficient evidence to establish that the substantive contents of the IEP developed October 15, 2008, were inappropriate.7/ The Matrix of Services form contains five "domains." Domain A relates to "Curriculum and Learning Environment." Domain B relates to "Social/Emotional Behavior." Domain C relates to "Independent Functioning." Domain D relates to "Health Care." Domain E relates to "Communication." Under each domain is a "Level of Service" that begins with Level 1 and ends with Level 5. There is a descriptor on the form and in a handbook as to what constitutes a level of service. The person completing the Matrix of Service form assigns a number to each domain based on the level of service provided in the IEP. The numbers for the five domains are added together to produce what is referred to as the "Cost Factor Scale," which is used to determine state funding to the School Board. The higher the Cost Factor Scale, the more state funding the School Board would receive for the student. The Cost Factor Scale is also utilized in determining the funding for McKay Scholarships. As part of the IEP process, Respondent completed a Matrix of Services form in conjunction with the October 15, 2008, IEP. Petitioner established that Respondent should have scored Domain A as a 3 as opposed to a 4. As scored by Respondent, the total domain rating was 12. If Respondent had correctly scored Domain A, the total domain rating would have been 11. Domain totals ranging from 10-13 produce a cost factor scale of 252. Because the Cost Factor Scale was not changed, this error did not become significant until Respondent completed the Matrix of Services form in conjunction with the February 2009 IEP. S.N. withdrew from Krop on October 23, 2008, and returned to her private school placement shortly thereafter. Between October 2008 and February 2009, S.N.'s negative behaviors escalated. On February 5, 2009, Ms. S.-N. re-enrolled S.N. at Krop. On the instructions of Ms. S.-N., Respondent convened an interim IEP meeting on February 9, 2009. The purpose of the meeting was to "review accommodations." An interim IEP coversheet was prepared by Respondent. Those purporting to sign the coversheet as having participated in the IEP team meeting and their positions were: Ms. S.-N. (parent), S.N. (student), Respondent (LEA), Ms. Rubinowitz (ESE teacher and evaluation specialist), and Mr. Davidson (general education teacher). As he did with the earlier IEP, Mr. Davidson signed the interim IEP coversheet on February 9, 2009, without having attended the IEP meeting or providing any input. No general education teacher participated in the IEP meeting. Consequently, this IEP team was not appropriately formed. Respondent failed to adhere to School Board procedures in assembling the IEP team. At that meeting, the level of counseling for S.N. was changed from weekly to daily, and a provision was added for the counselor to consult with the family on a monthly basis to monitor the status of S.N.'s focus on schoolwork. This change was based on input from Ms. S.-N. as to S.N.'s escalating behavior. The body of the IEP was not changed to reflect the change in counseling for S.N. from a weekly basis to a daily basis. That omission was an error by Respondent. A note was added to the IEP to reflect the added provision for family counseling. Respondent completed a Matrix of Service form on February 9, 2009, based on the interim IEP. Domain B was increased from a 3 to a 4 because of the change from weekly counseling to daily counseling. Domain D was increased from a 1 to a 2 because of the addition of monthly counseling with the student's family. The total domain rating increased from 12 to 14 based on the increases in Domains B and D. The Cost Factor Scale increased from a score of 252 to a score of 253. Petitioner established that Domain B should not have been increased because the IEP does not reflect that the student would begin receiving daily counseling. Because of Respondent's scoring errors, the final Cost Scale Factor was 253. Had Respondent correctly scored the Matrix of Services form, the final Cost Scale Factor would have been 252. Determining a level of service under a particular domain requires some subjectively. While Respondent made the scoring errors reflected above, Petitioner failed to prove that Respondent deliberately "fudged" her scoring to benefit Ms. S.- N.8/ On February 20, 2009, S.N. was withdrawn from Krop by her father. Subsequent to that withdrawal, Ms. S.-N. applied for a McKay Scholarship for S.N. for the 2009-10 school year. The application included the two IEPs discussed herein and the two Matrix of Services forms completed by Respondent. Had Ms. S.-N. been successful in obtaining a McKay Scholarship, the amount of the scholarship would have been greater if it had been awarded on a Cost Factor Scale of 253 as compared to a Cost Factor Scale of 252. Respondent had no knowledge that Ms. S.-N. intended to apply for a McKay Scholarship on behalf of S.N. at any time relevant to this proceeding. S.N. has now graduated from a high school in Broward County, Florida. Until her graduation, S.N. received services and accommodations similar to those reflected on the IEPs at issue in this proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order find Lisa Parker guilty of the violations alleged in Count I (misconduct in office), Count (III) (Violation of School Board Rule 6Gx13-4A- 1.21 relating to Responsibilities and Duties of School Board employees), and Count (IV) (Violation of School Board Rule 6Gx13-4A-1.213 relating to the Code of Ethics) of the Notice of Specific Charges and as found in this Recommended Order. It is further recommended that the final order find Lisa Parker not guilty of the violations alleged in Count II (immorality) and (V) (Violation of School Board Rule 6Gx13-4A-1.212 relating to Conflict of Interests). For the violations found, it is recommended that the final order suspend Lisa Parker's employment without pay for a period of 30 school days. Because Lisa Parker has been suspended for more than 30 school days, it is RECOMMENDED that her employment be reinstated with back pay. The calculation of back pay should not include pay for the 30- day suspension period. DONE AND ENTERED this 15th day of February, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 15th day of February 2013.
The Issue At issue is whether Respondent committed the offense alleged in the Final Notice of Non-Compliance and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Charles E. Brown, Jr., is now and was at all times material hereto licensed by Petitioner, Department of Insurance (Department), as a Life and Health Agent (02-18), and held license number A031614. At all times material hereto, insurance agents licensed in Florida, such as Respondent, have been required to complete continuing education courses every two years, and Respondent was aware of such obligation. 1/ Compliance could be achieved by completing Department-approved seminars, classroom courses, or self-study courses. 2/ During the compliance period of December 1, 1995 through November 30, 1997, Respondent was required to complete 28 hours of continuing education courses. With regard to that requirement, the proof demonstrated Respondent failed to complete any hours of continuing education. Consequently, the proof supports the conclusion that Respondent failed to timely complete the 28 hours of continuing education required for the compliance period at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing Findings of Fact and Conclusions of Law, and which, for the violation found, suspends Respondent's insurance license for a period of six months. DONE AND ENTERED this 28th day of April, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 28th day of April, 2000.
The Issue The issue for determination is whether Respondent's teaching certificate should be disciplined for alleged violations of Section 231.28(1)(h), Florida Statutes. The resolution of this issue rests upon determinations of whether Respondent used institutional privileges for personal gain or advantage, contrary to provisions of Rule 6B-1.006(4)(c) , Florida Administrative Code; and whether Respondent failed to maintain honesty in all professional dealings, a violation of Rule 6B-1.006(5)(a), Florida Administrative Code.
Findings Of Fact Respondent is Nannette V. Ramey. She holds Florida Teaching Certificate No. 408980 covering the areas of elementary education and school principal. The certificate was issued on July 1, 1976, and was renewed shortly before the final hearing in this case. During the 1988-89 school year Ramey was employed as the principal of Oceanway Elementary School by the Duval County School Board in Jacksonville, Duval County, Florida. Ramey produced a publication on school paper in black ink which set forth helpful hints to teachers at the school regarding educational techniques. The publication was entitled "Teacher's Tips" and was similar to the commercial teacher information booklet, "Master Teacher." The commercial booklet had been purchased and distributed at the direction of Ramey's predecessor at the school during the previous school year. Once a week during the 1988-89 school year at Oceanway Elementary, a copy of the "Teacher's Tips" publication was placed in each teacher's mailbox for their assistance. An industrious individual who likes a good deal, including real estate ventures, Ramey felt that she could sell subscriptions to the "Teacher's Tips." In January of 1989, Ramey began developing the idea of a commercial "Teacher's Tips." In March of 1989, she began acquiring subscribers to "Teacher's Tips" outside of Duval County through magazine advertisements and personal contacts. Ramey's commercial version of "Teacher's Tips" was distributed outside of Duval County, carried an annual subscription price tag of $9.99, and was distributed in Florida, Ohio and Canada. While printed on the same size paper as the free in- school version of the publication, the commercial version of "Teacher's Tips" was tri-folded and displayed Ramey's name as publisher along with her post office box number. During the 1988-89 school year, Ramey employed a teacher's assistant to work for her. The assistant was named Donna Avera. Avera's duties included running the copy machine, ordering school supplies and other general duties. During the course of the school day, Ramey gave Avera items to copy for her. Avera's office also served as the storeroom for school supplies and paper. On some occasions during the spring of the 1988-89 school year, Ramey would instruct Avera to use school supplied colored paper and run copies of the commercial version of "Teacher's Tips" for Ramey. Ramey also directed Avera to attempt to copy addresses of subscribers to the commercial version of "Teacher's Tips" onto blank mailing labels through use of the school copying machine. Avera's attempts with the copy machine in this respect were less than perfect with some names overlapping on some labels, but Ramey used the labels anyway. Ramey also instructed Avera during school hours to fold copies of the commercial version of "Teacher's Tips" for subsequent mailing. On one occasion in the spring of 1989, a copy machine company representative temporarily placed a demonstrator copier at the school at Ramey's request. The copier was at the school from May 9 through May 29, 1989. Ramey planned in advance to use the demonstrator copier for her personal use, recognizing what she termed "a perfect opportunity". She even purchased paper in anticipation of running off commercial copies of "Teacher's Tips" on the machine. The copier also possessed the capability to print different color inks. For instance, the version of the "Teacher's Tips" used within the school was printed on white or blue paper with black ink. The commercial version of the publication was run off in blue, pink, green, yellow and goldenrod colored paper. Avera assisted Ramey one day when the demonstrator copier jammed by unjamming the machine and running off numerous copies of the commercial version of "Teacher's Tips." During the period of time when the demonstrator copier was at the school, Avera noticed on each Monday that someone had evidently been there over the weekend making copies of the commercial version of "Teacher's Tips". Avera found copies of the commercial version jammed in the copy machine, the trash can, and spread out on a table. Notes bearing Ramey's initials would be found on the copier apologizing for jamming the machine. Another teacher's assistant, Nancy Gately, observed different colored paper being used in the copy room, along with placement of white identification cards bearing Ramey's name in booklets for Ramey to distribute during a trip. The booklets had colored commercial "Teacher's Tips" with them. Gately and Avera spent one day preparing them. The quantity of the booklets was sufficient to cover a cafeteria table. Avera ran errands for Ramey. Some of the errands were school related, other errands were personal to Ramey's needs. Avera sought travel reimbursement from the school bookkeeper. Ramey, overhearing Avera's request for reimbursement, called Avera into her office and offered the use of a private car in which to do the errands. Avera subsequently made inquiry with an attorney for the teacher's union regarding her right to receive travel expense reimbursement. She revealed the nature of her errands and that she was assisting Ramey in the preparation and dispersal of the commercial version of "Teacher's Tips." As a result of her revelations to the attorney, Avera learned she was participating in improper activities. After Avera's visit to the attorney for the teacher's union, Ramey confronted Avera in late September or early October of 1989. She advised Avera that the matter of mileage reimbursement should be immediately dropped. The relationship between the two women deteriorated rapidly after Ramey's confrontation with Avera. Eventually, Avera instituted a grievance against Ramey by letter dated February 22, 1990. The letter recounted various altercations between the two individuals in January and February of 1990. On one occasion, Ramey remarked to the school bookkeeper, Ms. Dale Mahan, that the commercial version of "Teacher's Tips" was doing well. Ramey told Mahan that the success of such a venture involved finding a product that did well, then copying and selling your own version of it. Ramey was observed at various times by Mahan folding and addressing the commercial version of "Teacher's Tips" while on school time. Mahan was the custodian of copy records for the maintenance agreements for the copy machine at the school. She gave these records to her successor, Vickie King, who became the bookkeeper in the fall of 1989. After King became the bookkeeper, Avera requested that King should examine the copy machine records in King's possession and ascertain that the records were complete. King reviewed the records and confirmed to Avera that they were complete. Later, Ramey asked King for all of the copying records and took them with her. Upon returning the records to King, the written records from the prior year concerning the monthly number of how much paper was used was not in the file. These records provided documentation regarding whether the school was staying within the copy limits of the maintenance agreement. If copy numbers exceeded the number established in the agreement, an additional copying charge would levied against the school.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of misconduct through the use of institutional privileges for personal gain or advantage and failure to maintain honesty in professional dealings, violations of Rule 6B-1.006(4)(c) and Rule 6B-1.006(5)(a), Florida Administrative Code. IT IS FURTHER RECOMMENDED that such Final Order place Respondent's license on probation for a period of three years upon reasonable terms and conditions to be established by Petitioner, including a condition that Respondent enroll in and successfully complete six hours of continuing education courses in the subject area of ethics in public administration. DONE AND ENTERED this 17th day of June 1991, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1991. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-11. Adopted in substance, though not verbatim. 12.-13. Rejected; unnecessary. 14.-50. Adopted in substance, though not verbatim. 5l.-52. Rejected; Unnecessary. Respondent's Proposed Findings. 1. Accepted. 2.-3. Rejected, unnecessary. Rejected, not supported by weight of evidence. Rejected, creditability. 6.-7. Rejected, not supported by weight of evidence. 8. Rejected, unnecessary. 9.-10. Rejected, not supported by weight of evidence, as to allegations that Avera's testimony supports finding that use of school copier was solely limited to after school hours. 11.-12. Addressed. Rejected, not supported by weight of the evidence. Rejected, argumentative, not support by weight of the evidence. 15.-16. Rejected, creditability. 17.-22. Rejected, argumentative. COPIES FURNISHED: Lane T. Burnett, Esq. 331 East Union Street Suite 2 Jacksonville, FL 32202 Charles F. Henley, Jr., Esq. 111 Riverside Avenue Suite 330 Jacksonville, FL 32204 George A. Bowen Acting Exec. Dir. 301 Fla. Education Center 325 W. Gaines St. Tallahassee, FL 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Fla. Education Center 325 W. Gaines St. Tallahassee, FL 32399-0400 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, FL 32399-0400
