The Issue The issue in the case is whether the application of Anne L. Kruppa (Petitioner) for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 13, 2004, by Jim Horne, Commissioner of Education (Respondent).
Findings Of Fact By an application dated July 7, 2000, Petitioner applied for a teaching position with the Hillsborough County School District. In the application, the Petitioner identified her college degree as "B.S. Zoology" from the University of South Florida (USF). Above Petitioner's signature, the application states that Petitioner certified that the information provided on the application was "true and correct without any falsifications, omissions, or misleading statements of any kind whatsoever." The application contained a space where the date of Petitioner's college graduation was to be provided. Petitioner's application did not include a graduation date. A handwritten question mark appears in the space where the date was to be set forth. Petitioner was employed as a teacher by the Hillsborough County School District for the 2000-2001 school year. At the time of her employment, Petitioner was instructed to obtain her college transcript from USF and provide it to the Hillsborough County School District. The evidence establishes that Petitioner did not have a bachelor's degree in zoology from USF when she completed the employment application. By an application dated July 31, 2000, Petitioner applied for a Florida Educator's Certificate. In the application, Petitioner stated that she had received a bachelor's degree in zoology from USF in 1998. According to the application, by her signature, Petitioner certified that "all information pertaining to this application is true, correct, and complete." At the time of the certification application, Petitioner was directed to obtain her college transcript and provide it to the Florida Department of Education. The evidence establishes that Petitioner did not have a bachelor's degree in zoology from USF when she completed the certification application. By spring of 2001, Petitioner had not provided a transcript to either the Hillsborough County School District or to the Florida Department of Education. At that point, the Hillsborough County School District contacted USF to assist in obtaining Petitioner's transcript, at which time the district learned that Petitioner did not have a bachelor's degree. In April 2001, the Hillsborough County School District terminated Petitioner's employment because she could not obtain a Florida Educator's Certificate without a college degree, and the employment required such certification. After the termination of employment by the Hillsborough County School District, Petitioner worked with the Hillsborough County School District as a substitute teacher and attended Hillsborough Community College in the fall semester 2001. After completing a course at the community college, Petitioner received a bachelor's degree in zoology from USF on December 14, 2001, and returned to teaching full-time for the school district. The evidence establishes that prior to December 14, 2001, Petitioner did not have a bachelor's degree, contrary to the information set forth on her application for employment with the Hillsborough County School District or the application to obtain a Florida Educator's Certificate from the Florida Department of Education. At the hearing, Petitioner testified that at the time she filed the applications she believed that she had received her bachelor's degree from USF in the summer of 1997 after taking a course called Elementary Calculus II during the summer term. The USF summer term included three separate sessions. Session A and Session B were six-week terms. Session C, a ten- week term, is not at issue in this case. The records of the 1997 USF summer term indicate that the Petitioner was enrolled in "MAC 3234 Elem Clclus II" (Elementary Calculus II) during the Summer Session A. According to the transcript, she received an "F" in the course. Petitioner testified that she thought she had enrolled in the course for Summer Session B. Petitioner testified that she paid another person to attend the classes and take notes for Petitioner. Petitioner testified that Petitioner took "a bunch of the tests" and "was figuring I had roughly a B something in the course." The note-taker testified by deposition and recalled taking notes for Petitioner during July and August of 1997 for a fee of ten dollars per hour. There is no evidence that the note-taker took any tests. Classes for the 1997 USF Summer Session B commenced on June 30 and ended on August 8. Classes for the 1997 USF Summer Session A commenced on May 12 and ended on June 20. Petitioner testified that at some point after the summer session was completed, she saw the course instructor and spoke to him about her performance in the class. The instructor did not testify at the hearing. Petitioner testified that she did not receive her grade for Elementary Calculus II, but presumed that she had passed the course and received her degree. Review of Petitioner's USF transcript establishes that at various times Petitioner took courses identified as "MAC 3233 Elem Clclus I" (Elementary Calculus I) and "MAC 3234 Elem Clclus II" (Elementary Calculus II). Petitioner enrolled in Elementary Calculus I in the fall term of 1994, but withdrew. In the fall term of 1995, Petitioner re-enrolled in Elementary Calculus I and received a grade of "A." Petitioner first enrolled in Elementary Calculus II in the spring term of 1996 and received a grade of "F." Petitioner again enrolled in the course in the summer term of 1996 and received a grade of "D." In the fall term of 1996, Petitioner re-took the Elementary Calculus I course and received a grade of "F." Petitioner's testimony regarding her presumed performance in the summer 1997 course lacks credibility based on review of the transcript. Based on the performance in the referenced calculus courses, it is unlikely that Petitioner reasonably presumed without further inquiry that she passed the Elementary Calculus II course and received her degree after the summer term of 1997. Petitioner also testified that she believed her admission to the USF graduate school indicated that she had completed her undergraduate requirements, and that further inquiry was apparently not required. The Official Acceptance that was mailed to Petitioner and was required to be presented to USF officials in order to register for courses clearly states that the admission was "provisional." The Official Acceptance required that Petitioner submit to the graduate school her undergraduate transcript indicating that the degree had been conferred. Nothing provided to Petitioner by the USF graduate school indicated that the undergraduate degree had been awarded. Petitioner was in the USF graduate program for one semester and was enrolled for five classes, four of which were undergraduate-level classes. In the fifth class (identified as "EDF 6432 Fndtns Measrmnt") she received a grade of "F."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Jim Horne, as Commissioner of Education, enter a final order denying Petitioner's pending application for a Florida Educator's Certificate and providing that Petitioner may not reapply for such certification for a period of two years. DONE AND ENTERED this 17th day of September, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 17th day of September, 2004.
The Issue Did Respondent Siebelts commit the offenses set forth in the petition for dismissal (Case No. 88-4697) and the amended administrative complaint (Case No. 89-0189) filed against her? If so, what discipline should she receive?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Karen Siebelts has held a State of Florida teaching certificate since 1976. Her current certificate was issued May 1, 1986, and covers the areas of elementary education, elementary and secondary reading, and secondary social studies and psychology. For the past thirteen years Siebelts has been employed by the School Board of Broward County as a classroom teacher. During the early stages of her employment, she taught at Melrose Park Middle School. She then moved to Perry Middle School, where she taught a class of emotionally disturbed sixth graders. Her performance at these two schools was rated as acceptable. In November, 1979, Siebelts was assigned to teach at Charles Drew Elementary School, a neighborhood school located in the predominantly black Collier city area of Pompano Beach. The charges lodged against Siebelts are based on specific acts she allegedly committed while she was a Chapter I Reading/Math and Computer teacher at Charles Drew providing remedial instruction to students whose test scores reflected a need for such special assistance. On January 22, 1985, while seated with her fifth grade students at a table during a reading lesson, Siebelts inadvertently kicked one of the students in the shin. The incident occurred as Siebelts was moving her legs to a more comfortable position. The force involved was minimal and produced no visible injuries. The student immediately demanded an apology from Siebelts. Siebelts responded to this demand with silence. She neither apologized nor said anything to suggest that she had intended to kick the student. Earlier in the lesson, Siebelts had directed the student to stop talking. The student had defied the directive and continued to talk. It was not until approximately three minutes after the student's initial defiance of the directive, however, that the kicking incident occurred. Nonetheless, the student suspected that Siebelts had intentionally kicked her because of her failure to obey Siebelts' order that she not talk. When the student came home from school that day she told her mother that Siebelts had intentionally kicked her during class. The mother immediately reported the incident to the principal of the school, Hubert Lee. The matter was referred to the School Board's Internal Affairs Unit for investigation. The requested investigation was conducted. Following the completion of the investigation, a written report of the investigator's findings was submitted to the administration. No further action was taken regarding this incident until approximately three and a half years later when the instant petition for dismissal was issued. Siebelts was annoyed when she learned that the student and her mother had accused her of wrongdoing in connection with the January 22, 1985, kicking incident. On February 19, 1985, she expressed her annoyance in front of her fifth grade class and in their presence threatened to take legal action against those students and parents who had made libelous or slanderous statements about her or had otherwise verbally abused her. She told the students that they and their parents would be subpoenaed to court and if they did not appear they would be incarcerated. The principal of the school was informed of these remarks shortly after they were made, but it was not until the instant petition for dismissal was issued on August 22, 1988, that Siebelts was first formally charged with having made the remarks. Before coming to work on January 28 1986, Siebelts took a codeine pain medication that her physician had prescribed. When classes started that morning she was still under the influence of the medication. She was listless and drowsy. Her speech was slurred and she appeared incoherent at times. She also had difficulty maintaining her balance when she walked. Because Siebelts had been taking this medication "on and off" since 1979, she had been aware of these potential side effects of the medication when ingesting it on this particular occasion. A teacher's aide in Siebelts' classroom concerned about Siebelts' condition summoned the principal, Hubert Lee, to the classroom. When he arrived, Lee observed Siebelts seated at her desk. She was just staring and seemed "to be almost falling asleep." The students were out of control. They were laughing and making fun of Siebelts. After questioning Siebelts and receiving an answer that was not at all responsive to the question he had asked, Lee instructed Siebelts to come to his office. Siebelts complied, displaying an unsteady gait as she walked to Lee's office. In Lee's office, Siebelts insisted that she was fine, but conceded that she was "on" prescribed pain medication. Throughout their conversation, Siebelts continued to slur her words and it was difficult for Lee to understand her. Pursuant to Lee's request, Dr. Lorette David, Lee's immediate supervisor, and Nat Stokes, a School Board investigator, came to Lee's office to observe and assess Siebelts' condition. A determination was thereafter made that Siebelts was not capable of performing her instructional duties that day, which was an accurate assessment. She therefore was sent home for the day. Because of her impaired condition, rather than driving herself home, she was driven to her residence by Dr. David. Although she believed that she was not suffering from any impairment, Siebelts did not protest the decision to relieve her of her duties because she felt that any such protest would have fallen on deaf ears. Following this incident, Siebelts was issued a letter of reprimand by Lee. She also was referred to the School Board's Employee Assistance Program because it was felt that she might have a substance abuse problem. Siebelts agreed to participate in the program and received counselling. At no time subsequent to January 28, 1986, did Siebelts report to work under the influence of her pain medication or any other drug. During the 1987-1988 school year, Siebelts and two other Chapter I teachers, Rosa Moses and Mary Cooper, occupied space in Charles Drew's Chapter I reading and math laboratory. Their classrooms were located in the same large room and were separated by makeshift partitions. Siebelts is white. Moses and Cooper, as well as the aides who were assigned to the laboratory during that school year, are black. In October, 1987, Moses complained to Principal Lee that Siebelts was not teaching her students, but rather was constantly engaging in loud verbal confrontations with them that disrupted Moses' lessons. Lee had received similar complaints about Siebelts from others. He therefore asked Moses to advise him in writing of any future classroom misconduct on Siebelts' part. Siebelts continued to engage in conduct in her classroom which Moses deemed inappropriate and disruptive. On November 4, 1987, for the last five minutes of one of her classes, she loudly exchanged verbal barbs with her students. Her yelling made it difficult for Moses and Cooper to teach their lessons. On November 5, 1987, throughout an entire 45-minute class period, Siebelts was embroiled in a verbal battle with a student during which she made derogatory remarks about the student's size. She called the student "fat" and told her that she "shake[d] like jelly." The student, in turn, called Siebelts "fruity" and likened her to a "scarecrow." On that same day during a later class period, Siebelts took a student by the arm and, following a tussle with the student, placed him in his seat. Thereafter, she made belittling remarks to the other students in the class. She said that they were "stupid" and "belonged in a freak show." She also referred to them as "imbeciles." Siebelts further told her students that their "mothers eat dog food." On November 25, 1987, Siebelts commented to the students in one of her classes that they would be able to move around the classroom with greater ease if they were not so fat. As she had been asked to do, Moses provided Lee with a written account of these November, 1987, encounters between Siebelts and her students, but Lee did not take any immediate action to initiate disciplinary action against Siebelts. Although she did not so indicate in her report, Moses believed that the unflattering remarks that Siebelts had made to the students on these occasions constituted racial slurs inasmuch as all of the students to whom the remarks had been addressed were black and in addressing these remarks to the students as a group she had referred to them as "you people." Moses thought that "you people" had meant black people in general, whereas Siebelts had intended the phrase to refer to just the students in the classroom. At no time during any of these reported incidents did Siebelts make specific reference to the students' race, nor did she specifically attack black people in general. The target of her demeaning and insulting remarks were those of her students whose unruly and disrespectful behavior she was unable to control. Her efforts to maintain discipline and promote learning in the classroom had failed. She had become frustrated with the situation and verbally lashed out at her students. Unfortunately, these outbursts only served to further reduce her effectiveness as a teacher. On March 1, 1988, Siebelts was involved in an incident similar to the one which had occurred more than three years earlier on January 22, 1985. As on the prior occasion, Siebelts was sitting at a classroom table with her students. Her legs were crossed. When she repositioned her legs, her foot inadvertently came in contact with the top of the head of a student who was crawling under the table to retrieve a pencil the student had dropped. The student had been told by Siebelts not to go under the table but had disobeyed the instruction. She had been under the table for approximately a minute and a half before being struck by Siebelts foot. The blow to the student's head was a light one and produced only a slight bump. Nonetheless, after getting up from under the table, the student, a brash fourth grader who had had confrontations with Siebelts in the past, threatened to physically retaliate against Siebelts. Siebelts did not say anything to the student and the class ended without the student following through on her threat. Following this incident, Siebelts telephoned the student's mother at home to discuss the student's classroom behavior. The call was placed sometime before 9:00 p.m. The conversation between Siebelts and the mother soon degenerated into an argument. They terminated the discussion without settling their differences. Lee subsequently met with the mother. He suggested that a meeting with Siebelts at the school be arranged. The mother indicated to Lee that she would not attend such a meeting unless school security was present. She explained that she was so angry at Siebelts that she was afraid that she would lose her composure and physically attack Siebelts if they were in the same room together.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Education Practices Commission issue a final order suspending Karen Siebelts' teaching certificate for two years and that the School Board of Broward County issue a final order suspending Siebelts until the reinstatement of her teaching certificate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June, 1989. STUART M. LERNER 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 29th day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-4687 AND 89-0189 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Commisioner of Education's Proposed Findings of Fact Accepted and incorporated in substance in the Findings of Fact portion of this Recommended Order. Rejected as contrary to the greater weight of the evidence. Rejected as beyond the scope of the charges. Siebelts was not charged with having made threatening remarks the day after the January 22, 1985, kicking incident. These threats were allegedly made, according to the charging documents, on February 19, 1985. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Insofar as it asserts that Siebelts engaged in name-calling on dates other than those specfied in the petition for dismissal and amended administrative complaint otherwise, it is accepted and incorporated in substance. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Furthermore, the witness whose testimony is recited in this proposed finding later clarified her testimony and conceded that Siebelts did not use the precise words quoted in this proposed finding. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as not supported by the greater weight of the evidence to the extent that it suggests that Siebelts made "racial comments" on the dates specified in the petition for dismissal and amended administrative complaint. Insofar as it states that such comments were made on other occasions, it is rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. According to the petition for dismissal and amended administrative complaint, Siebelts threatened her students with legal action on February 19, 1985. This proposed finding, however, relates to alleged threats of legal action made by Siebelts during the 1987-1988 school year. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as outside the scope of the charges. Rejected as outside the scope of the charges. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as unnecessary. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Rejected as irrelevant and immaterial. Rejected as irrelevant and immaterial. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Siebelts' Proposed Findings of Fact First unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance. Second unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Rejected as irrelevant and immaterial; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and :incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; ninth sentence: Accepted and incorporated in substance. Third unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as unnecessary; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance. Fourth unnumbered paragraph: Rejected as more in the nature of a statement of opposing parties' position than a finding of fact; second sentence: Rejected as subordinate; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as subordinate; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Accepted and incorporated in substance. Fifth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Accepted and incorporated in substance; fifth sentence: Accepted and incorporated in substance; sixth sentence: Accepted and incorporated in substance; seventh sentence: Rejected as subordinate; eighth sentence: Accepted and incorporated in substance; ninth sentence: Accepted and incorporated in substance; tenth sentence: Accepted and incorporated in substance; eleventh sentence: Accepted and incorporated in substance; twelfth sentence: Accepted and incorporated in substance. Sixth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: rejected as a summary of testimony rather than a finding of fact based on such testimony. Seventh unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony (The exculpatory testimony of Siebelts which is summarized in the first three sentences of this paragraph has not been credited because it is contrary to the more credible testimony of other witnesses) fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Eighth unnumbered paragraph, first sentence: Accepted and incorporated in substance; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as subordinate; fourth sentence: Accepted and incorporated in substance; fifth sentence: Rejected as subordinate; sixth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; seventh sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; eighth sentence: Rejected as subordinate; ninth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Ninth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fifth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Tenth unnumbered paragraph, first sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Accepted and incorporated in substance; third sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; fourth sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony. Superintendent of School's Proposed Findings of Fact Accepted and incorporated in substance, except for the fourth sentence, which has been rejected as contrary to the greater weight of the evidence. Accepted and incorporated in substance except to the extent that it asserts that Siebelts "advised the students that they and their parents would be placed in jail because of the lies and the slander." The preponderance of the evidence reveals that she actually told them that they and their parents would be incarcerated if they did not appear in court when summoned. First sentence: Rejected as a summary of testimony rather than a finding of fact based on such testimony; second sentence: Rejected as subordinate. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected as more in the nature of argument concerning relatively insignificant matters than findings of fact addressing necessary and vital issues. Accepted and incorporated in substance, except to the extent that it suggests that Siebelts had alcohol on her breath. Any such suggestion has been rejected because it is contrary to the testimony of Investigator Stokes. Stokes, who has been employed by the School Board as an investigator for the past 20 years, testified that he was standing one or two feet away from Siebelts and did not detect the odor of alcohol on her breath. In view of his experience regarding the investigation of these matters, his testimony has been credited. Rejected as a summary of testimony rather than a finding of fact based on such testimony. Accepted and incorporated in substance. To the extent that this proposed finding states that Siebelts made inappropriate remarks regarding the students' clothing or other matters on dates other than those specified in the petition for dismissal and amended administrative complaint, it has been rejected as outside the scope of the charges. Insofar as it asserts that Siebelts made derogatory remarks about black people in general on the dates specified in these charging documents, it has been rejected as contrary to the greater weight of the evidence. To the extent that this proposed finding indicates that Siebelts otherwise insulted the students in her class on the dates specified in the charging documents, it has been accepted and incorporated in substance. Rejected as beyond the scope of the charges. The "disparaging remarks" which are the subject of this proposed finding were purportedly made during the 1984-1985 school year. The "disparaging remarks" referenced in the petition for dismissal and amended administrative complaint were allegedly made, according to these charging documents, during the 1987-1988 school year, more specifically, on November 4, 5, and 25, 1987. Rejected as beyond the scope of the charges. The "critical" remarks referred to in this proposed finding were allegedly made prior to the 1987-1988 school year. First sentence: Rejected as irrelevant and immaterial to the extent it references reactions to "disparaging" and "critical" remarks that were purportedly made prior to the 1987-1988 school year. Otherwise, it has been accepted and incorporated in substance; second sentence: Rejected as a summary of the testimony of Siebelts' former students and colleagues rather than a finding of fact based on such testimony. First sentence: Accepted and incorporated in substance; second sentence: Accepted and incorporated in substance, except to the extent that it reflects that Moses actively monitored Siebelts classroom conduct "through December of 1987." The preponderance of the evidence establishes that such active monitoring actually ceased November 25, 1987; third sentence: Accepted and incorporated in substance, except to the extent it indicates that Noses heard Siebelts tell her students that they "were dirty and needed baths." This comment was purportedly overheard, not by Moses, but by Margaret Cameron, a teacher's aide who had left Charles Drew prior to the commencement of the 1987- 1988 school year; fourth and fifth sentences: Rejected as beyond the scope of the charges. These proposed findings are based on Cameron's testimony regarding offensive comments she had allegedly overheard while an aide in Siebelts' classroom. These pre-1987-1988 school year comments, however, are not mentioned in either the petition for dismissal or the amended administrative complaint. First sentence: As this proposed finding correctly points out, Siebelts' insulting comments only served to heighten the students' hostility and anger toward her. There is no persuasive competent substantial evidence, though, to support the further finding that these comments "resulted in several physical altercations between the students;" second sentence: Rejected inasmuch as there no persuasive competent substantial evidence that there was any "heated verbal exchange" on November 5, 1987, between Siebelts and the student which preceded their "altercation." The preponderance of the evidence establishes that the verbal battle with her students occurred immediately after this incident; third sentence: Rejected as contrary to the greater weight of the evidence. Although she may used physical force during her encounter with this student, it is unlikely that she actually "tossed" him into his seat. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected as beyond the scope of the charges. Rejected inasmuch as there is no persuasive competent substantial evidence to support a finding that Siebelts telephoned the student's mother as a result of the incident near the air-conditioner. The preponderance of the evidence does establish that Siebelts did telephone the mother on a subsequent occasion, but there is no indication that Siebelts threatened the mother or otherwise acted inappropriately during this telephone conversation. Although the mother asked to have security personnel present during a parent-teacher conference with Siebelts, the preponderance of the evidence reveals that this request was not the product of any threats that Siebelts had made against the mother. First sentence: Rejected as not supported by the greater weight of the evidence. Siebelts' testimony that the contact was unintentional is plausible and has been credited. The circumstantial evidence presented by Petitioners (including evidence of prior confrontations between Siebelts and the student) raises some questions regarding the veracity of Siebelts' testimony on this point, but such evidence is not sufficiently compelling to warrant the discrediting this testimony. Given her penchant for verbalizing to her students her thoughts about them, had Siebelts intended to kick the student as a disciplinary measure, she undoubtedly would have made this known to the student, rather than remain silent as she did; second sentence: Accepted and incorporated in substance; third sentence: Accepted and incorporated in substance, except to the extent that it suggests that immediately after kicking the student, Siebelts had a "smirk on her face." To this limited extent, this proposed finding is not supported by any persuasive competent substantial evidence; fourth sentence: Accepted and incorporated in substance. First sentence: Rejected as not supported by any persuasive competent substantial evidence; second, third, fourth and fifth sentences: Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. Rejected as more in the nature of argument and a summary of testimony than a finding of fact based on such testimony. To the extent that this proposed finding suggests that Siebelts' behavior at school on January 28, 1986, and her verbal attack of her students on November 4, 5, and 25, 198', reduced her effectiveness as a teacher, it has been accepted and incorporated in substance. Insofar as it indicates that other conduct in which she engaged resulted in a reduction or loss of effectiveness, it has been rejected as either contrary to the greater weight of the evidence (other conduct specified in charging documents) or beyond the scope of the charges (other conduct not specified in charging documents). COPIES FURNISHED: Charles Whitelock, Esquire 1311 S.E. 2nd Avenue Fort Lauderdale, Florida 33316 Edward J. Marko, Esquire Suite 322, Bayview Building 4,1040 Bayview Drive Post Office Box 4369 Fort Lauderdale, Florida 33338 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Thomas P. Johnson, Ed.D. Associate Superintendent Human Resources Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 Craig R. Wilson, Esquire Suite 315 1201 U.S. Highway One North Palm Beach, Florida 33408-3581 Karen B. Wilde Robert F. McRee, Esquire Executive Director Post Office Box 75638 Education Practices Commission Tampa, Florida 33675-0638 125 Knott Building Tallahassee, Florida 32399
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint?
Findings Of Fact Respondent holds teaching certificate number 394824, which was issued on July 1, 1982, and is valid until June 30, 1992. At all times relevant, Respondent was an employee of the Duval County School Board. Respondent is an English teacher and also a coach for baseball, basketball and football teams. During the 1986-1987 school year, Respondent taught English at Jeb Stuart Junior High School. While at Jeb Stuart, Respondent befriended Ms. Westerman, a ninth grade student. The friendship resulted in Respondent and Ms. Westerman talking and exchanging handwritten notes often. The notes Respondent wrote to Ms. Westerman during this period appear to be a little too personal for a student-teacher relationship, but cannot be said to constitute inappropriate behavior. When the 1986-87 school year ended, the relationship was interrupted by the summer break. Respondent thought he would not see Ms. Westerman again, since she would be going to a different school, Forrest Senior High School, for the 1987-88 school year. Respondent, however, also transferred to Forrest Senior High School because he wanted to coach high school sports teams and an opportunity to do so presented itself. At the beginning of the 1987-88 school year, Respondent and Ms. Westerman reestablished their relationship and started talking and exchanging notes. Beginning in September, Respondent's notes to Ms. Westerman became more personal, containing statements such as: . . . do you love and appreciate me. . . you're the mayonnaise on my cheeseburger.! * * * I like to talk to you. My only problem is that I want to talk to you the way a man talks to a woman (nothing nasty) and I can't because of this student- teacher relationship. Petitioners Exhibit 1, pages 25 and 26. While at Jeb Stuart, Respondent had given Ms. Westerman a metal bookmarker. During the period from approximately early October 1987 to December 16, 1987, Respondent gave Ms. Westerman the following items: 1 pink Panasonic cassette player 1 vase containing sixteen roses stuffed bear in karate suit tee shirts (1 blue and 1 white w/Minnie Mouse design) 1 picture - fish 3 cassette tapes 1 Chinese Scent fan small straw basket bags of scented potpourri 1 football jersey #55 small bottle of scented Rose liquid pictures of Mr. Tackett 1 blue plastic sun visor with "Moi Gata" written on it Also, Respondent would occasionally give or loan Ms. Westerman lunch money and money to buy sodas after school. Sometime in October, Respondent realized that he was getting "feelings" for Ms. Westerman and that the relationship was becoming more than a teacher-student relationship. Respondent also became jealous of Ms. Westerman's male friends. Ms. Westerman became concerned about the tone of some of Respondent's notes and statements. In November 1987, Respondent and Ms. Westerman decided it would be best to end the relationship and attempted to do so. However, the attempt was unsuccessful and Respondent and Ms. Westerman resumed exchanging notes and talking. On December 15, 1987, Ms. Westerman's sixteenth birthday, Respondent gave her a note containing written instructions. The instructions directed Ms. Westerman to go to the Burger King near the school and ask for the manager. Upon doing so, the manager gave Ms. Westerman the vase containing sixteen roses. Ms. Westerman was accompanied by a friend and was embarrassed to receive the roses under such circumstances. Respondent also gave Ms. Westerman the cassette player for her birthday. Respondent told Ms. Westerman to bring a black bag to school and leave it with him. When Ms. Westerman received the bag back, the cassette player was in it. The bag was needed to hide the cassette player, since it was against school rules to have a cassette player at the school. On December 16, 1987, Ms. Westerman's mother discovered the notes and gifts. On the following day, Ms. Westerman's mother went to the school and met with the assistant principal regarding the notes and gifts. After this meeting, the school began the investigation which led to this hearing. The investigation was supposed to be confidential. However, when school began in 1988, after the Christmas break, it became known around the school that Mr. Tackett was being investigated and that Ms. Westerman was part of the investigation. Ms. Westerman was harassed by students who liked Mr. Tackett and believed Mr. Tackett's problems were Ms. Westerman's fault. After her mother discovered the letters, Ms. Westerman began having nightmares, developed sleeping and eating problems and her grades deteriorated. These problems disappeared with time, but resumed as the time for this hearing drew near and Ms. Westerman received a subpoena to appear at the hearing. Respondent never made oral, written or physical advances of a sexual nature toward Ms. Westerman. Respondent has given gifts and lunch money to other students. However, he has never given 19 gifts to another student. In those instances where gifts to students were substantial, e.g., a radio or a television set, the gifts were rewards for good school work and not outright gifts as in Ms. Westerman's case. Respondent is an excellent teacher who takes a great interest in his students and is able to inspire them to want to do better in school. On several occasions, Respondent has been directly responsible for bad or mediocre students being able to better their academic performance. In September 1987, Respondent was 42 years old. At the hearing, Respondent was not willing to recognize that what he had done was improper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered placing Respondent on probation for two years during which Respondent's teaching activities are supervised and he receives counselling regarding what a proper teacher-student relationship should be. DONE and ENTERED this 16th day of February, 1989, in Tallahassee, Leon County, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1989. APPENDIX CASE NO. 88-2990 Rulings on Petitioner's proposed findings of fact with exception of some proposed facts which are subordinate to facts found, the proposed findings of fact contained in paragraphs 1-25 are accepted. Paragraphs 26-30 are rejected as recitations of testimony. Rulings on Respondent's proposed findings of fact 1-10. Accepted. True for face-to-face conversations, but Respondent encouraged the relationship through his notes where he asked Ms. Westerman to respond and write back. Accepted. Accepted. Rejected as recitation of testimony. 15-19. Subordinate to facts found. 20-22. Rejected as irrelevant. 23. Accepted. COPIES FURNISHED: Lane Burnett, Esquire 331 East Union Street Jacksonville, Florida 32202 Al Millar, Esquire 2721 Park Street Jacksonville, Florida 32205 Karen B Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol, PL08 Tallahassee, Florida 32399-0400
Findings Of Fact The parties entered into a stipulation to the effect that the Respondent, Dr. Thomas L. Richey, Superintendent of Collier County Schools, and the Chiller County School Board, does not admit that Petitioner, James Morgan is qualified for out of zone assignment to Barron Collier High School. However, due to his performance record over the past two school years, 1986-1987 and 1987-1988, the school system believes that it is in his best interests that he not be moved at this time and that he be permitted to continue his education at Barron Collier High School through completion of academic requirements and the award of a high school diploma.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the School Board of Collier County accept the stipulation as presented and enter a Final Order consistent with the terms thereof, permitting Petitioner to remain a student at Barron Collier High School through his graduation. RECOMMENDED this 20th day of January, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1988. COPIES FURNISHED: Thomas L. Richey, Superintendent Collier County Public Schools 3710 Estey Avenue Naples, Florida 33942 Frank P. Murphy, Esquire 850 Central Avenue, Suite 300 Naples, Florida 33940-6036 James H. Siesky, Esquire 791 Tenth Street South, Suite B Naples, Florida 33940-6725
Findings Of Fact Bryce David Forrester attended 7th grade at Glades Junior High for the 1984-1985 school year until his alternative school assignment on May 18, 1985. Petitioner's witness Judy Cobb, Assistant Principal of Glades Junior High had no personal knowledge of Bryce David Forrester's behavior and was not the official record custodian of his records. Her testimony provided no information of probative value. Thomas Zelenak is presently Principal of Glades Junior High and was formerly assistant principal there during the 1984- 1985 school year. He had no personal knowledge of the referrals which allegedly culminated in the computer record of disciplinary referrals admitted as the School's business record (P-2). The discipline referral slips were not offered. All discipline referrals had been by teachers who were not present for hearing and all counseling of the student had been handled by retired Principal Skinner or former Assistant Principal Zahner, neither of whom were available for hearing. Mr. Zelenak also had no personal knowledge of the Respondent's alleged disruptive/ behavior which resulted in the referrals and referral slips which allegedly were behind the computer record. Mr. Zelenak did conduct a parent-administrator conference on April 1, 1985 with Respondent's parents and agreed to Respondent's continued placement at Glades Junior High School provided his behavior improved. Respondent's father testified that at this conference Mr. Zelenak told him that alternative school placement was not in the student's best interest. Mr. Zelanek denied saying this. It is significant that P-2 does not reflect this conference ever occurred even though both Mr Zelenak and Mr. Forrester agree it did occur and the occurrence of this conference is corroborated by other exhibits. Therefore, this entire computer record (P-2) is of doubtful credibility. Mr. Zelenak gave his opinion at hearing that although the student may possess the ability to become a productive student he was not doing so at Glades Junior High and that the student belongs in an alternative placement program because of his disruptive behavior and its effect on the children around him. However, there was no predicate established for Mr. Zelenek's forming this opinion. The official record of the student's final grades for the year indicates failure in three subjects on the date he was withdrawn by the parent, May 22, 1985. Respondent's position was that the School Board did not make appropriate parent contact so as to forestall the alternative school assignment and that the procedure by which School Board officials reviewed and acted upon the principal's(Mr. Skinner's) recommendation of alternative school placement was contrary to School Board Rules duly adopted and promulgated. The testimony of William R. Perry, Director of Alternative Education Placement and Donald Hollis, Coordinator, Alternative Education Placement, that the procedure by which the assignment was made was in substantial compliance with the School Board rules is accepted over a single late postmark offered by Respondent for one of the notifications.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Bryce David Forrester to an appropriate regular school program, preferably at Glades Junior High School. DONE and ORDERED this 27th day of September, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 27th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esquire 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Gary Forrester (Parent) 8340 S. W. 97th Street Miami, Florida 33130 Phyllis 0. Douglas, Esquire 1450 N. E. 2nd Avenue Miami, Florida 33122 Madelyn P. Schere, Esquire 1450 N. E. 2nd Avenue - Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether Respondent should be suspended from employment for twenty days without pay for misconduct and unprofessional conduct in violation of School District Policies 1.013 and 1.014, Florida Administrative Code Rules 6B-1.001(3) and 6B-1.006(4)(b), (5)(a) and (5)(h), and School Board Bulletins #P-12542-CAO/COO-Count Day and Class Size Reduction Review, and #P-12519-CAO/COO-Florida Department of Education Student Enrollment Procedures.
Findings Of Fact Petitioner, Palm Beach County School Board (the Board or Petitioner), operates, controls, and supervises all public schools within the Palm Beach County School District (the District), as authorized by Subsection 1001.32(2), Florida Statutes (2008). The District School Superintendent, Dr. Arthur C. Johnson (Superintendent Johnson) is responsible for the administration, management, and supervision of instruction in the District, as provided in Subsection 1001.32(3), Florida Statutes (2008). Respondent, Dr. Gwendolyn Johnson (Dr. Johnson or Respondent) was the principal at Independence Middle School (Independence) during the 2007 to 2008 school year. In her thirty-five years with the District, Dr. Johnson was a principal for eight years, an assistant principal for eleven and a half years, a guidance counselor for approximately nine years, and, before that, an elementary and high school occupational specialist. At Independence, Respondent's assistant principals were Kathleen Carden, Martest Sheffield, and Scott Duhy. Although the projected enrollment was 1174, not the minimum number of 1201 required to justify having a third assistant principal, Dr. Johnson requested and, on May 15, 2007, received approval to keep the third assistant principal, Mr. Duhy, subject to reaching or exceeding the required enrollment by the time the count of students was taken on or about the eleventh day of school in the fall. The increase over the projection was possible because Independence was the 2007 receiving school for students whose parents transferred them from D- or F-rated schools under No Child Left Behind Act. For the 2007-2008 school year, Dr. Johnson assigned primary responsibility for maintaining a count of the student population to another one of the assistant principals, Dr. Carden. In addition to determining the number of assistant principals, the enrollment count is used by the District to determine other staffing, including the number of teachers, and guidance counselors assigned to each school. Attendance at Independence was reported by teachers each school day on bubbled attendance sheets. The sheets were scanned each day and the data stored in a computer program called the Total Education or Resource Management System (TERMS). The sheets were returned to the teachers who used them to record attendance for a two-week period before signing and submitting them, and receiving new computer-generated biweekly attendance scan sheets. On August 23, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12519-CAO/COO/FO/FTE), that any student who had never attended any period since the first day of school must have a withdrawn code entered into the TERMS program by August 27, 2007. Dr. Johnson e-mailed the Bulletin to her administrative staff and convened a meeting of that group to review it. Her secretary also e-mailed a reminder of the requirements to the staff on August 27, 2007. Teachers reported students who never attended school from the beginning of the year, the so-called "no-shows," by making handwritten notes or by drawing lines through the student's name on the attendance sheets, expecting those names to be removed from their rosters. Students who never showed up were not bubbled absent on the attendance sheets. A student aide in the student services office scanned the sheets, so the school's data processor, Angela Jones, did not see the teacher's notes and make changes in the computer. Once teachers kept getting biweekly attendance sheets with the names of no-shows and transfers on them, they started e-mailing or otherwise notifying Ms. Jones who began to keep a running list of no shows and transfers. Ms. Jones was not allowed to enter the withdrawal code in TERMS until authorized to do so by either Dr. Johnson or Dr. Carden, as shown by their e-mails. Rather than following the instructions in Bulletin # P-12519 to withdraw all no-shows by August 27, 2007, no-shows were treated like transfers and were not withdrawn until the student's new school requested their records. Dr. Johnson's claim that she was not aware that procedures outlined in the District's Bulletin of August 23, 2007, were not being followed by Ms. Jones and Dr. Carden, is not credible. She was present at the meetings in her office and her conference room, well after the August deadline, during which Ms. Jones continued to receive instructions to wait for approval to make withdrawals. On August 31, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12542-CAO/COO) that the District's enrollment count day was September 7, 2007, and that the count would be taken from TERMS. Dr. Johnson sent an e-mail to all teachers to count students, as directed in the Bulletin of August 23, by only including students who had been in attendance at least one period since school began on August 22, thereby excluding no-shows from the count. Prior to 2007, this would have been the enrollment number that the school faxed or e-mailed to the District. For the first time in 2007, the number used by the District was the number taken from TERMS summary enrollment screen that included no-shows at Independence. The District also relied on that data for its Full Time Equivalent (FTE) survey and report to the State Department of Education (DOE). The FTE count is used to determine per pupil funding by the State. The actual number of students at Independence on September 7, 2007, was 1188 but the number taken from the TERMS database and reported was 1214, a twenty-six student discrepancy that was later, after an audit, reduced to twenty-four. In October 2007, Dr. Johnson falsely verified the accuracy of the FTE survey that was, subsequent to the audit, determined to be an over-count of 23 students. Dr. Johnson testified that she verified the accuracy of the count relying on the work of Dr. Carden, Ms. Jones, Exceptional Student Education Coordinator Carol Lee, and ESOL Coordinator Ann Costillo. She denied attempting to fraudulently inflate the number to gain or maintain resources allocated by the District, but she knew there was a difference in the numbers based on a September report from Dr. Carden. She also knew that, if the teachers followed her instructions regarding how to count students, the "actual" number of 1214 from TERMS, written in by Dr. Carden, had to be incorrect. TERMS data also was uploaded to another program called Grade-Quick. When it was time to give grades at the end of nine weeks, Ms. Jones no longer had the ability to alter the rosters and teachers were required to give a grade to each student on their roster. David Shore was the Grade-Quick technical support person at Independence. At the suggestion of Dr. Johnson, he sought advice from the District's technical support person, Bruce Roland, who told him to have teachers give each no-show student a grade of "F" to avoid an error code. The uploaded grades for students who did not attend Independence, according to Mr. Roland, would be deleted from the District's mainframe. Fearing other consequences of giving "Fs," including the possibility of generating letters to parents whose children did not attend Independence, and doubting Mr. Shore's advice because he was relatively new in his position, some teachers refused to give "Fs" to no-shows. After discussions with Dr. Johnson, Mr. Shore instructed teachers to give a grade of "C" instead and to be sure also to give a conduct grade. One teacher apparently found a way to give a conduct grade, but no letter grade, to students who were not enrolled in her class and to somehow avoid a computer error code. Some time during the fall semester, anonymous complaints concerning the enrollment at Independence were made to the State Auditor General's Office, who referred the matter to an auditor in the District's office. In December 2007, the audit confirmed that the count at Independence was incorrect largely because no-shows and withdrawals were not withdrawn timely from the computer in TERMS before the District's initial count on August 27, 2007; before the District's eleven-day count on September 7, 2007; nor before Dr. Johnson twice verified the accuracy of the FTE count in October 2007. Dr. Johnson made no effort to make corrections, after she admittedly was aware of the errors in October, November, and December. Dr. Johnson blamed teachers who were unprofessional, racist, and disgruntled over her more strict adherence to the attendance rules for teacher planning and professional development days, and over proposed spending of A-plus money. She testified that they deliberately failed to bubble no-shows as absentees. That assertion contradicts the testimony of her witness that the proper procedure was followed by teachers who drew lines through the names of no-shows rather than bubbling them as absent. It also contradicts the instructions she gave in a memorandum to teachers, on October 5, 2007, telling them to write codes next to students' names on their rosters, NS for no- show, WD for withdrawn - If a student was present at least one day..., T for transfer, and A for add. Her memorandum instructs teachers to give the information to Ms. Jones on October 11, 2007. Ms. Jones said she did look at rosters for FTE reporting and she did make corrections. She too says her count was accurate at the time unless teachers withheld information. The teachers' rosters were maintained and, from a review of the class rosters, the auditor concluded that the error was made in not correcting TERMS to comply with teachers' reports. Dr. Johnson also blamed her supervisor, Marisol Ferrer, for sending a less experienced manager, Joe Patton, to attend a meeting, on October 11, 2007, with her of the Employee Building Council, a group that included some teachers who were antagonistic towards Dr. Johnson. It is true that only later did Mr. Patton recall that, after the meeting and after Dr. Johnson left, some of teachers told him there were problems with the student count at Independence. At the time, however, Mr. Patton did not tell Ms. Ferrer or Dr. Johnson about the comments. Dr. Johnson testified that, had she been told after that meeting on October 11th about the problems, she could have corrected the numbers before she submitted her verification of accuracy. She did know that Dr. Carden showed her two sets of numbers on September 7, 2007. Although she testified that she believed the fluctuations were normal because students come and go during the day for doctor's appointments or for other reasons, Dr. Johnson took no further steps to determine if that was in fact the cause of the discrepancy. After Dr. Johnson and Dr. Carden instructed Ms. Jones to begin making withdrawals after the October FTE report, some of the withdrawals were backdated showing the no-show students' withdrawal dates as the first day of school, August 22, 2007. The District submitted corrections to DOE before the deadline for incurring penalties, ultimately reducing the FTE count at Independence by 23 students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order suspending Respondent for twenty days without pay. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 16th day of April, 2009. COPIES FURNISHED: Frederick W. Ford, Esquire 2801 PGA Boulevard, Suite 110 Palm Beach Gardens, Florida 33410 Sonia Elizabeth Hill-Howard, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, C-302 Post Office Box 19239 West Palm Beach, Florida 33416-9239 Dr. Arthur C. Johnson, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, C-302 West Palm Beach, Florida 33416-9239 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant Principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as Principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an Intern Principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time Intern Principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and (5) accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, a fact which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract. Employment Requiring a Teaching Certificate At the time of hearing, Ms. Maynard had not found employment requiring a teaching certificate since being suspended, without pay and benefits, by the School Board on or about March 18, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education enter a final order: Finding that Doreen Maynard committed Counts 2 (only as to gross immorality), 3, 4, 5, 7, 10, 12, 15, and 16; Dismissing Counts 1, 6, 8, 9, 11, 13, 14, and 17; and Suspending Doreen Maynard's educator's certificate for three years, with denial of an application for an educator's certificate for the three-year period, and, after completion of the suspension, placing her on probation for one year under terms and conditions deemed appropriate by the Commissioner of Education. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 21st day of July, 2011.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Albert Forrest Taylor holds Florida teacher's certificate number 356846, issued on December 16, 1983, covering the areas of drafting and administrative supervision, and the evidence so showed. Petitioner's Exhibit No. 1. As the parties also stipulated, respondent was at all times pertinent employed as a teacher of drafting and welding at Florida School for the Deaf and Blind in St. Augustine. He began in that job in the fall of 1979 and continued until his dismissal in January of 1985. Throughout the time Forrest Taylor taught at the Florida School for the Deaf and Blind, the school's administration, in particular Raymond Butler, then supervisor in the vocational education program for the deaf, received numerous complaints from numerous students, male and female, about Mr. Taylor's "physically touching and punching, and squeezing, and coming into physical contact with" (T.91) students. Two or three times a week female students complained "about Mr. Taylor's attitude towards them; how he looked at them." (T.62). His students usually complained "about his manhandling them, or pushing them, or twisting their arm, or things of that nature" (T.95), although they also complained about his sleeping in class and his "[t]alking to them all the time," (T.92) instead of communicating with them in sign language. In general, he had no "rapport with the students." (T.92) He ordinarily taught high school students, but he began the 1984-1985 school year also teaching drafting to younger students, including six or seven mainly eighth graders, during the period that began at one o'clock in the afternoon. Nubia Argenal, who testified she was in the seventh grade at the time, was in the class, as were Sandra, Michele and Scotty Alford. Together in another of Mr. Taylor's drafting classes that year were Kim Benefield, John Sharpton, Theresa Smith and perhaps eight more students. (T.47) ALFORD On January 18, 1985, Scott Alford finished his assignment, about halfway through respondent's one o'clock class. Respondent Taylor was at another student's desk at the time. With papers in one hand and a ruled T- square in the other, Scott left his seat and began hitting an air-conditioning vent with the T-square, which made a loud noise. He "was sort of bored, didn't have anything to do, so ... [he] was tapping the air- conditioning." Petitioner's Exhibit No. 2, pp. 21-22. He persisted even after Mr. Taylor told him to stop and came over to him. With playful intention, Scott hit his teacher with his fist, striking his arm just below the shoulder, "what we used to call a frog," petitioner's Exhibit No. 2, p. 32, although it was just [a] light punch." Id., p. 33. Unamused, Mr. Taylor grabbed Scott by the throat and pushed him backward against some shelves. When he got loose, Scott made for the classroom door, and Mr. Taylor sent him to Brad Thompson's office. Scott recounted events in Brad Thompson's office, where Mr. Thompson, the school's coordinator of vocational services, noticed red marks on both sides of Scott's neck. After he had spoken to Scott, Mr. Thompson left to speak to Mr. Taylor, who admitted "that he did grab Scott ... [but said] that he did it in self defense ... (T.60) In the course of this conversation, certain rules were mentioned, and Mr. Taylor replied "that the rules were full of shit." (T.60) Afterwards, Mr. Thompson went into Mr. Butler's office and brought Mr. Butler into his office where Scott had been waiting. According to Mr. Butler, Scott was very upset, although he was not crying. He "was flushed in the face and [his] hair was tousled ..." (T.83), and had "red welt-type finger marks on his neck ... at least two on one side and one on the other side." Id. He admitted hitting his teacher, but indicated that this type of horseplay was common, with Mr. Taylor frequently doing the hitting. Mr. Butler telephoned Danny Hutto, Assistant Principal, who asked that the matter be investigated further. By the time other students had been interviewed, the school day, a Friday, was over. After school on Monday, Messrs. Taylor, Thompson, Butler and Hutto gathered in Mr. Hutto's office to discuss the incident. Arrogant and profane, Mr. Taylor denied touching Scott Alford's neck, saying "he more or less grabbed him on the shoulder." (T.86) Whether the confrontation one of Scott's classmates, Nubia Argenal, adverted to when she testified that respondent "tried to strangle Scotty," Petitioner's Exhibit No. 4, p. 4, is the same as the imbroglio of January 18, 1985, is not clear from the evidence. SHARPTON John Sharpton, who was born December 11, 1969, (T.46) was in another of Mr. Taylor's drafting classes in 1984 and early 1985. On one occasion, Mr. Taylor grabbed John's throat, too, "or in there." (T.51) "It was a little bit red and then went away ... [with] some ice on it." (T.52) John would not voluntarily take another class from respondent for fear Mr. Taylor would hit him again. (T.52) BENEFIELD Kim Benefield erased something she had written on a piece of paper while in Mr. Taylor's drafting class one day in the fall of 1984 or January of 1985. Bits of the pink eraser (T.34) rubbed off by the erasure (T.23) fell into her lap. When she began brushing them off her dress, Mr. Taylor joined in. He touched her dress and she felt his touch "around the knee." (T.23) Kim said, "No, I will do it myself." (T.35) "Don't touch me, because it makes me feel weird." (T.22) "But he stayed just a little bit more. And he [his hand] went down ... [her] leg." (T. 35-36). On another occasion, a day after a night on which Kim had painted her fingernails, Mr. Taylor, whose son was visiting the class that day, summoned her to where he stood with his son, took her hand, and showed it to his son. (T. 23, 24) Kim found this embarrassing. On still another occasion, Mr. Taylor stood behind Kim and placed his hand on her shoulder, then in the general area of her armpit. She feared further forward movement of his hand, and, thinking "he tried to . . touch [her] breast, ... [she] put [her] arms down," (T.24) to prevent it. At the time, she was talking to a student who sat next to her, and Mr. Taylor "sort of got in between" (T.24) the two students. In a separate incident, after class one day, Kim started to leave even though Mr. Taylor was speaking to her, telling her he was going to give her detention hall. He grabbed her arm hard enough to leave three marks. (T.28-29) Kim, who was born on December 13, 1968 (T.21), would be afraid to return to a class respondent taught. SMITH One day in this same drafting class, Kim thought she saw Mr. Taylor look down the dress of another student, Theresa Smith. (T.26) John Sharpton recalled seven or eight times that respondent "flirted" with Theresa Smith, including one occasion on which he touched her just below her breast. MICHELLE Respondent once poked the end of a T-square "to Michelle's breast ... and said, `You have dirt inside your blouse ...'" Petitioner's Exhibit No. 4, p. 10. ARGENAL From time to time, respondent asked Nubia Argenal, "What is inside your blouse?" Petitioner's Exhibit No. 4, p. 29. He also asked this question of Nubia's classmate Sandra. He said to Nubia, "I like you. You're pretty. You have a pretty body. You're a pretty girl." Mr. Taylor once placed a T-square against Nubia so that it touched her breast, although his hand came in contact only with her chest at a point above her bosom. Petitioner's Exhibit No. 4, p. 66. At least once, Mr. Taylor stood behind Nubia, who was seated at a drafting table, and massaged her shoulders, until her protests dissuaded him. Petitioner's Exhibit No. 4, pp. 55- 56. On one occasion, when she was leaning on her table, he shook the table, with the result that her breasts moved. Petitioner's Exhibit No. 4, pp. 52-55. Other times he took her hands and shook her arms with the same result. Petitioner's Exhibit No. 4, pp. 48-51. On these occasions, respondent laughed. HUGHES Jill Hughes was a junior at the Florida School for the Deaf and Blind during the 1984-1985 school year. She took drafting from Mr. Taylor, but not in either of the classes made up of junior high students. Mr. Taylor rubbed her back on several occasions. Standing behind her in class, "he kind of did his hand, lightly, over the center of . . . [her] back. Petitioner's Exhibit No. 3, p. 23. Ms. Hughes explained: He was walking around the class, and he would walk over to me. Sometimes, when I asked him for help he would walk over to me and put his hand on my shoulder, and I thought at first, the first time that he touched me, I thought nothing was wrong, because I thought it was nice. And then after that, when he started moving his hand, I thought it was funny. So I didn't say anything. And then afterwards I asked for help [with schoolwork], when I was through with that, and then again I asked for help [with schoolwork], and the same thing, he moved his hand and my other friend, he did the same thing to her, touched her, the same way. And I began to notice, and I heard stories and so that was when I told him, "If you touch me again, if you touch me again, I'll tell my mother." Petitioner's Exhibit No. 3, p. 21. On cross-examination, in response to the question, "Isn't it possible that Mr. Taylor was just being fatherly, paternal?", Jill answered, "I don't know." (T.24) Further cross-examination elicited the following: Q. Wasn't it possible that he was merely trying to be supportive? A. It didn't seem that way to me, not the way he touched me. Petitioner's Exhibit No. 3, p. 31. Over a period of "[m]aybe two months," Petitioner's Exhibit No. 3, p. 9, Mr. Taylor complimented her on her legs (great, beautiful, nice), hair (pretty, beautiful blonde), eyes (beautiful), make-up (pretty) and muscles (good). Petitioner's Exhibit No. 3, pp. 7, 9, 17, 18. EFFECTIVENESS REDUCED Respondent's "actions were totally inappropriate. Because of his actions, ... he lost his effectiveness, as far as the students were concerned." (T.114) The students ... were fearful of him. And the students particularly did not want to be in his classroom. (T.114). The assistant principal at the Florida School for the Deaf "would not recommend that he teach anywhere in the State of Florida, or anywhere, period." (T.114) It is not a question of his technique in teaching deaf children (T.95-99). It is more a question of "inborn qualities, personal qualities that a person has, feeling[s] toward other people." (T.99)
The Issue The issue in this case is whether there is just cause to terminate Paula Sinclair's employment with the Broward County School Board based upon the allegations made in its Administrative Complaint dated July 9, 2015.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Broward County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Sinclair started her employment with Petitioner in 2007. She was employed as a guidance counselor pursuant to a professional services contract. Sinclair has a Florida Educator's Certificate and received a bachelor's degree in youth and community studies from Surrey University in England, a postgraduate diploma in social work and criminology from Middlesex University in England, and a master's degree in school guidance counseling from Nova University. Sinclair was a guidance counselor at Walter C. Young Middle School for the 2007-2008 school year. The following school term, 2008-2009 school year, Sinclair transferred to New River Middle School and held the position of a guidance counselor. 2009-2010 School Year Sinclair was placed at Indian Ridge Middle School ("Indian Ridge") for the 2009-2010 school year. She was assigned as the eighth grade guidance counselor. On August 3, 2009, Assistant Principal Michael Lyons ("Lyons"), and Busjit-Bhalil ("Busjit"), guidance counselor, met with Sinclair to explain her duties and responsibilities. Indian Ridge opened for the school year on August 25, 2009, and Sinclair started getting parent complaints about her performance. She also started making scheduling errors. On August 27, 2009, Sinclair had her first conference with Lyons. On August 28, 2009, Lyons had a second conference with Sinclair regarding her scheduling being taken over by Busjit because Sinclair was either not completing the work or the work was not timely done. On September 2, 2009, Lyons set a meeting for September 8, 2009, with Sinclair, Busjit, and Zagari to discuss Sinclair's job performance because Sinclair had made numerous mistakes. On September 3, 2009, Sinclair placed an eighth grade student in a seventh grade course. On September 11, 2009, Lyons met with Sinclair and outlined Sinclair's major areas of job performance concerns. Scheduling, poor communications with parents, inability to provide accurate information, and failure to read and respond to emails in a timely manner were addressed with Sinclair. Lyons set up a cycle of assistance to provide Sinclair the help she needed to bring her performance up to District level. Lyons also provided Sinclair training. He directed Sinclair to work with the following co-workers to get specific training in the different areas she needed improvement: Busjit, to review all guidance functions and duties, scheduling practices, procedures and protocols; Nancy Bourbeau ("Bourbeau") for TERMS1/; Susan Perless ("Perless") in regard to ESE students; Brown for best practices with parents and to read CAB system emails daily, as well as formulate a record-keeping system for phone communications. During the meeting, Sinclair responded by staring silently at Lyons. Sinclair was provided two weeks to correct the performance deficiencies. On September 15, 2009, Lyons followed up the meeting discussions from September 11, 2009, with a memo to Sinclair outlining the serious concerns regarding her job performance. The memo deemed the following areas substandard: Students being placed in double reading classes that are not designed for being double blocked. Placing 8th grade students in 7th grade classes. Placing advanced students in regular education classes. Providing only 5 courses for students when they should have 6 courses. Wrong team designations on student schedules. Incorrect course and section numbers on student schedules. Interacting with parents in a curt manner. Failure to return phone calls from parents. Providing wrong or inadequate information to parents. Failure to follow direction in formulating a new algebra class. Failure to notify impacted teachers of schedule changes. Failure to process schedule changes in a timely manner. Failure to open and read emails in a timely manner. A general lack of "Withitness" in regard to school matters. On September 15, 2009, Busjit started Sinclair's training on TERMS panels. She reviewed the differences among the intensive reading classes and processes for accessing the server and database. On September 16, 2009, Bourbeau, data management specialist, trained Sinclair on TERMS and scheduling. Bourbeau went through every panel guidance counselors needed to know and discussed the procedures of a schedule change, as well as how to create a new schedule. On September 22, 2009, Perless, ESE specialist, reviewed the different roles in ESE with Sinclair, went over the panels in TERMS, and discussed the role of guidance in the area of ESE. After Sinclair received the training and assistance, her performance did not improve at all. She was inept in performing scheduling tasks and continued to assign students to the wrong class. Busjit continued to instruct Sinclair numerous times on the process of scheduling students properly. On December 4, 2009, Lyons discovered the physical education ("PE") waivers2/ were not completed. Lyons provided Sinclair a directive to ensure that all students in need of a PE waiver have one by December 18, 2009. Lyons first instructed Sinclair to perform the task by August 28, 2009, previously extended the deadline to November 13, 2009, and addressed the issue again on November 16, 2009. On or about December 4, 2009, a conference was held with Sinclair, which was detailed in a summary of conference memo dated December 8, 2009. The memo detailed that Sinclair would continue to receive assistance to help improve her performance, but if her performance did not improve, she would be placed on a Performance Development Plan ("PDP"). The next day Sinclair was absent from work. On December 18, 2009, Lyons wrote a memo to Respondent concerning her excessive absenteeism and requested Sinclair to provide a doctor's note justifying her absences since December 9, 2009. On December 19, 2009, Sinclair produced a Return to Work Certificate from Dr. Alvarez ("Alvarez") with a return date to start during the school holiday period, December 21, 2009. On or about January 15, 2010, Sinclair reported that she was taken to the emergency room the previous evening and filed for Family Medical Leave ("FMLA") requesting 12 weeks of leave from work. The request was accompanied by a Certificate of Health Care Provider and stated Sinclair had been treated by Alvarez since 1997 and was unable to perform her duties. On January 15, 2010, while out on FMLA, Sinclair applied for a hardship transfer to another school for the 2010- 2011 school year. On February 19, 2010, while on leave Sinclair also filed a discrimination charge against Lyons and the principal, which was denied. Upon Sinclair's return to work, her inability to perform her duties continued, and she made repeated mistakes. Sinclair failed to submit the students' PE waivers and educational plans after repeated directives from administration. She also failed to complete the Florida Virtual students' list. Sinclair's work was substandard. She could not perform basic routine counseling functions of the job, such as the scheduling of students. Sinclair received a satisfactory performance rating in the Instructional Personnel Assessment System because Broward County Teachers Union contract prohibits any employee from getting less than a satisfactory without first being on a PDP. 2010-2011 School Year Sinclair transferred to Northeast High School ("Northeast") for the 2010-2011 school year. She was assigned the ninth grade and a third of the seniors, who were split between the three counselors. Lupita Wiggins ("Wiggins") was Sinclair's guidance director at Northeast. Before school started, Wiggins asked Sinclair if there were any areas she needed help with and Sinclair requested training in TERMS. Wiggins met with Sinclair at her home and went over TERMS with Sinclair. Wiggins also trained Sinclair about high school graduation requirements since Sinclair had previously worked in guidance at middle schools. Sinclair did not show up to work the first two weeks of school. When she reported to work, Wiggins started noticing that Sinclair was having difficulty in scheduling. In November 2010, Wiggins discovered Sinclair still had not moved the ESOL students from Mercier's class, which she should have completed near the beginning of the year. On January 4, 2011, Wiggins reviewed the process for scheduling students properly with Sinclair again. On January 21, 2011, Sinclair incorrectly scheduled Term 8 courses for Term 9. Sinclair never mastered TERMS and continued to make mistakes such as: placing students in the wrong classes for the wrong quarters, which caused teachers' rosters to be missing students; placing a freshman student in a 10th grade biology class; double booking a student; and placing a non-ESOL student in an ESOL writing class. On January 21, 2011, Wiggins requested a list of ninth graders who had below a 2.0 GPA. Sinclair provided Wiggins a list of seniors who either had been in Apex3/ and were rejected or already scheduled for Apex. Wiggins worked with Sinclair to try to help her understand how to schedule properly and spent over two hours explaining to Sinclair again how to look at the students' credits to determine the courses that they needed. On January 25, 2011, Sinclair supplied another wrong class in Apex by not providing the classes for fourth or second period Apex classes. On February 24, 2011, Sinclair made another scheduling error and the terms did not match up. Sinclair also scheduled one student for American History as a needed graduation requirement, but removed her out of another class needed as a graduation requirement. Wiggins sat down with Sinclair countless times to try to teach her how to schedule students properly. Sinclair continued to make huge errors. On March 9, 2011, Sinclair improperly removed a student out of Spanish II, the second part of the two-year foreign language mandatory requirement to go to a four-year university, and told the student she needed Geometry in the second semester for graduation. The student already had all of her credits for math. On March 28, 2011, Sinclair still had not fixed the TERMS scheduling error brought to her attention by Wiggins on February 24, 2011. Wiggins had to constantly go back and double-check and recheck Sinclair's work, as well as fix it or do it herself. Wiggins also received complaints from parents that Sinclair was being unprofessional and disrespectful. 2011-2012 School Year In the 2011-2012 school year, Sinclair returned to Northeast where her performance issues continued. On or about August 26, 2011, Sinclair was notified of five ninth grade students who she did not place in the appropriate reading class, and Sinclair was instructed to correct the scheduling. Subsequently, Wiggins checked the five students' statuses and Sinclair had only changed one student's status, which was still an incorrect placement. From September 12 to October 7, 2011, Wiggins reviewed Sinclair's senior letters. Thirty-five of them had erroneous information. One letter told a student he was on target for graduation and not on target at the same time. In another letter Sinclair detailed a meeting with a student, who had withdrawn two weeks prior to the meeting date. Sinclair continued to fail to perform her counseling duties. She was still unable to use TERMS, continued to improperly schedule classes for students, and could not evaluate transcripts. She even failed to assign students to core classes. On or about November 29, 2011, Sinclair went out on FMLA through January 3, 2011. Alvarez noted in her doctor's note that she needed to rest. Jonathan Williams became the principal at Northeast and decided to develop a PDP to address Sinclair's ineptitude. On April 24, 2012, Allan Thompson, assistant principal, notified Sinclair by memo that she had been absent since April 19, 2012, and he was unable to write her PDP. Therefore, the meeting was being rescheduled for April 30, 2012, "for the purpose of writing your PDP." Sinclair did not return to work on April 9, 2012, as scheduled. Instead, Sinclair applied for a leave of absence. Principal Williams signed the request but noted that he was in the process of developing a PDP for Sinclair. Sinclair's leave was approved and she was absent from April 9, 2012, through May 9, 2012. Sinclair requested another hardship transfer to another school while out on leave. The transfer was denied. A conference was scheduled with Sinclair to write the PDP on May 11, 2012, but at 7:00 p.m. on May 9, 2012, Sinclair wrote an email stating "due to illness, I will not be in until next week." Sinclair never returned to work in time to write the PDP and she did not receive an evaluation for the 2011-2012 school year because of her days on leave: she did not meet the minimum requirements to get an evaluation. 2012-2013 School Year Sinclair took personal leave for the 2012-2013 school year. Her request stated her reason was "to care for my 88 year old Aunt who is dependent on me for everything. She recently had a fall and is declining health." Sinclair did not receive an evaluation rating for the 2012-2013 school year because she was not in attendance and/or actively teaching one day more than half of the school year, which is the minimum requirement to be evaluated. 2013-2014 School Year In August 2013, Respondent came off leave from Northeast and was placed at Western High School ("Western") because an opening was available after a guidance counselor retired. Principal Jimmy Arrojo ("Arrojo"), assigned her to the ninth grade students since she had previously been a guidance counselor over ninth grade students. On August 7, 2013, Arrojo first met with Sinclair and treated the meeting as an entry interview trying to get to know Sinclair and transition her comfortably into her new position. Sinclair did inform Arrojo that she had previously been placed on a cycle of assistance. Arrojo explained to Sinclair that her job duties included counseling students, scheduling, reading transcripts, placement of students, dealing with problems that may occur, talking with parents, and setting up parent conferences. During the initial meeting, Arrojo provided Sinclair a list of immediate assignments due August 16, 2013. He instructed Sinclair to find the incoming ninth graders at risk report, look up ninth grade graduation requirements, and review her job description and highlight any areas where she thought she might have issues. Lauren Cohen ("Cohen"), Western's school counselor director, was Sinclair's supervisor assigned to guide Sinclair through guidance including registration, evaluating transcripts, and scheduling. In October 2013, Cohen started receiving emails and phone calls from parents requesting a counselor change from Sinclair. Parents would request verification of information Sinclair provided and other parents would report that Sinclair had not responded to them. Mary Jones ("Jones"), assistant principal over the guidance department, also became concerned with Sinclair's performance as a guidance counselor because Sinclair generated numerous complaints from parents and was making mistakes. Jones decided to provide Sinclair extra help to improve her work performance. Sinclair made numerous scheduling errors, improper class placements, as well as calculated incorrect grades and credits for the students assigned to her. Sinclair's errors and failures exposed her students to graduation mishaps. Sinclair also had attendance issues and Arrojo had several informal conversations with Sinclair to help her improve her performance. On December 19, 2013, a mid-year review meeting was held with Sinclair, Cohen and Jones. Sinclair's weaknesses with scheduling, including her inability to schedule students with TERMS, incorrect grades, discipline records, graduation requirements, and credits, were discussed with Sinclair during the meeting. Sinclair's failure and inability to perform her duties continued into 2014. Sinclair was still providing incorrect information to students, placing students in the wrong classes, and improperly evaluating transcripts. The School Board evaluates employee's performances with the Broward Instructional Developments and Growth Evaluation ("BrIDGES") system. The School Board uses iObservation to maintain the observation data. BrIDGES is mutually agreed upon by the School Board and Broward Teachers Union. BrIDGES has an evaluation tool for guidance counselors in sections J through R, which evaluates their day-to-day interactions and responsibilities. During evaluation observations, administrators record ratings based on numeric values that are averaged out based on the calculations that have been determined in the District. There are five different ratings based off of what is observed. Each rating has a numeric value. Innovating is worth 4 points, applying is worth 3 points, developing is worth 2.5 points, beginning is 2 points, and not using is 1 point. The points are averaged to come up with the Instructional Practice Score. Jones was trained on BrIGDES and iObservations. On February 22, 2014, Jones observed Sinclair's day to day activity. She also evaluated Sinclair's interaction with colleagues. Jones rated Sinclair beginning. On March 11, 2014, Jones conducted a meeting observation of Sinclair with an incoming ninth grade registration. During the meeting, instead of properly guiding the student and showing the student the course on the course card, Sinclair asked the student to find the course. Jones rated Sinclair beginning for the interaction since Sinclair did not demonstrate she knew how to map courses on the course card as she had been previously instructed and trained. On April 7, 2014, Jones was dissatisfied with Sinclair's timing and methods used to communicate information skills and rated Sinclair with beginning in the category of promoting positive interactions with students and parents for a classroom incident. The rating was for a parent meeting Sinclair had. She interrupted the instructional flow of the classroom and put a teacher on the spot by calling her during class and questioning her about the student instead of taking a message and facilitating communication between teacher and parent later. On or about April 9, 2014, Jones conducted a 30-minute formal observation of Sinclair's registration of a new ESE student. Sinclair showed up 30 minutes late to the scheduled conference and provided incorrect information about the course and credit. Jones rated Sinclair beginning for the observation because of the errors. On May 1, 2014, Jones assessed Sinclair's evaluation category for collegiality and professionalism, domain 4, and noted that Sinclair "identified ESE student and his needs during registration." She gave her a score of developing. Sinclair's performance as a guidance counselor at Western went up and down. Sometimes she did what was needed to be done. And, more often than not she scheduled students inappropriately. When Jones met with Sinclair to review issues, she would just stare at Jones and not provide an answer to her questions even if prompted and asked a direct question. Sinclair would reply with silence or reply "I don't recall." After her observations for the 2013-2014 school year, Sinclair ended up with an Instructional Practice Score 2.335, which showed she needed improvement. 2014-2015 School Year Sinclair started off the 2014-2015 school year needing to improve her Instructional Practice Score. The District provides support for employees with performance concerns. Tanya Thompson ("Thompson"), evaluation coordinator for the District, was assigned to Western to coordinate support for employees that receive a less-than- effective annual evaluation. Thompson's job is to provide assistance in rectifying the employee's performance deficiencies. Thompson started to assign Sinclair Nardia Corridon ("Corridon") as her fall peer reviewer to provide extra help and coaching, which would improve Sinclair's performance to the District level. However, Sinclair requested that she not get Corridon as her peer reviewer. For the 2014-2015 school year, Cohen oversaw the guidance department and met with all the guidance counselors periodically to address processes and issues. When Sinclair did not grasp the guidance counseling processes, Cohen started working one-on-one with her to explain and show her how each counseling duty should be done. Thompson assigned Gisella Suarez ("Suarez"), to Sinclair from the District as her peer reviewer after Sinclair notified Thompson she did not want Corridon. Suarez was assigned to coach Sinclair and help enhance her job performance. She did not serve as part of the assessment procedure or evaluation process for Sinclair. Even though Sinclair had a weekly peer reviewer, Cohen continued to provide Sinclair school-based support including extra meetings, and making sure that she sat down with her often to go over the different aspects of the counseling job including addressing parent concerns, following protocol for test materials, registering students, evaluating transcripts, scheduling, placing students, and Response to Intervention ("RtI).4/ Cohen documented her support meetings with Sinclair in coaching logs dated August 11, 13, 14, 22, 26, 28, 2014, September 2, 5, 9, 2014, October 29, 2014, November 4, 2014, and December 11, 12, 2014. On August 22, 2014, Suarez started coaching Sinclair and also documented her training sessions by coaching logs each time she met with her. When Sinclair met with Suarez, she shared her final evaluation from the previous year. Suarez used the evaluation to develop the session topics for coaching Sinclair. Suarez met with Sinclair weekly and focused her coaching sessions on all the areas of concern from Sinclair's evaluation. Suarez coached Sinclair on areas such as: contacting and communicating with parents, teachers, and students; facilitating educational planning in her office; and using counseling technology to help look up data on students. On or about August 28, 2014, Sinclair erroneously overrode the system and allowed a student to register for a higher math class because the parent wanted the student in the class. Sinclair should have verified that the class was appropriate by accessing the student's transcript or had the student tested before placing the student in a higher level math class. During the coaching sessions, Suarez would provide Sinclair additional resources to look at or ask her to log on to a database or go to a website. Repeatedly Sinclair did not follow through with the assistance and would inform Suarez that she did not have time. On or about August 31, 2014, the counselors were handling incoming registrations for private school transfers and middle school transfers prior to the start of the school year. Sinclair was not performing her share of registrations because she was not able to get into TERMS for a day and a half. Sinclair had to have her password reset. Jones rated her beginning for waiting a day and a half to gain access to the main working database, TERMS, and have access to check students schedules or appropriately place students. On September 9, 2014, Cohen reviewed RtI with Sinclair and showed her the website for the prevention office and all resources. They reviewed the use of technology on iObservation. Cohen also instructed Sinclair not to blame other counselors when working as a team. Cohen continued to receive numerous complaints about Sinclair not returning emails and phone calls to parents. While observing Sinclair, Suarez would also provide her feedback and suggestions to improve her interactions when she met with parents. Sinclair was generally receptive. However, Sinclair did not follow through with Suarez's suggestions. Sinclair struggled remembering her password to access BASIS, the web based guidance counselors' database to obtain the information for students. On October 6, 2014, Jones conducted a 30 minute formal observation during Sinclair's registration of a foreign student. Sinclair conversed with the student's uncle from the beginning of the meeting to the end about the student's registration without including or interacting with the student. Instead of letting the uncle convey the information to the niece and making her a part of the conversation, Sinclair repeatedly told the uncle, "you can talk to her about this tonight." Jones ultimately interceded in the meeting and pulled up InfoCat, a database utilized to identify foreign speaking students, to pair the new student with a student on campus that spoke the same home language and help transition the student. While coaching Sinclair, Suarez accessed Sinclair's skills with RtI and determined that she could not even go into the database even though she had been a counselor for over four years. Since Sinclair was responsible for RtI, Suarez provided Sinclair a Brainshark webinar from the District's counseling department to assist her in becoming proficient on RtI. The tool detailed the RtI process and included training on how to get on the system, initiate referrals, maintain data on interventions, and how to input information. On October 8, 2014, Suarez suggested that Sinclair register for the District RtI additional training. Sinclair attended the training. On October 10, 2015, Suarez met with Sinclair and used her coaching period with her to view the Brainshark RtI webinar since Sinclair still had not viewed it on her own time although Suarez had suggested it previously. Suarez had to log on to Brainshark because Sinclair could not access it. After the District RtI training and webinar training, Sinclair still struggled with RtI. She was still only able to get on RtI one time independently while with Suarez and continued to forget her password, although she would write her password down, and how to get on the system. On October 27, 2015, Jones observed Sinclair performing domains 2 through 4 and rated Sinclair developing because she did what she was supposed to do. On October 29, 2014, Cohen reviewed transcripts and test codes with Sinclair. Cohen met with Sinclair and went through the process and trained Sinclair again on how to enter grades and what assessment codes to use on a grade transcription sheet. When coaching Sinclair, Cohen had to repeat most topics multiple times. On November 3, 2014, Suarez and Sinclair watched a BASIS webinar to improve Sinclair's performance with BASIS. Sinclair took notes. Suarez also coached Sinclair on Virtual Counselor, a simple web-based program the District has where students, including middle school aged students, teachers and parents have access to student's grades and attendance. Sinclair also struggled with getting into Virtual Counselor and using the system. On November 20, 2014, Jones decided that it was about halfway through the school year so she would conduct an informal observation to see how Sinclair was doing. On December 11, 2014, Cohen met with Sinclair to review the previous assignment to put together a one page sheet with everything a ninth grader would need to know about semester grades including GPA, exams, and end-of-course classes ("EOC"). Sinclair's product did not contain the requested information and when asked to explain the document Sinclair could not explain it to Cohen. Cohen went over the components again and Sinclair took notes. Cohen ended the meeting by quizzing Sinclair. Cohen asked Sinclair if a student passed the nine weeks but failed the exam would they get credit. Sinclair looked at Cohen and would not answer. After being asked three times, Sinclair said no, which was the wrong answer. Cohen explained that Sinclair needed to learn, understand, and master how credits worked as part of her counseling job and she needed to be able to explain it to students properly. On December 12, 2014, Jones and Derek Gordon had a meeting with Sinclair and provided her a summary memo informing her that there were concerns with her job performance and a possible professional growth plan would be implemented. Jones summarized Sinclair's performance of November 20, 2014, informal meeting in the memo. Jones also rated Sinclair as not using for area L; beginning for area M; and not using for area N. The Post Observation Summary memo which stated: There was little interaction with parents during the parent meeting Resources were not provided to the parents No conclusions were drawn or action plan created following conference Based on my observation, I am concerned about your performance. I stated that I would provide you with assistance in order to assist you in improving your performance. I also encouraged you to continue working with your Peer Reviewer, Ms. Suarez. I also have had the opportunity to conduct observations this year. Based on those observations, a rating of beginning or not using have been given in the following elements: Use of Available Technology Participating in District and School Initiatives Supporting and organizing the Physical Layout of the Session Room Collecting and Analyzing Data to Develop and Implement Interventions Within a problem- Solving Framework Know and understand that if these deficiencies are not remediated, you may need to be placed on a Performance Development Plan. On December 12, 2014, Suarez also attempted to meet with Sinclair for their next weekly coaching session. Suarez's plan for the session was to review RtI again and to look at some technology resources for students. Sinclair did not respond to Suarez while she was in the office and finally stood up and opened the door showing Suarez out after approximately 20 minutes. Suarez responded requesting a date for their next coaching meeting the following week. Sinclair informed her she would get back to her. On January 8, 2015, Sinclair left Suarez a voicemail on her cellphone saying that she did not believe she needed her support any further. On January 9, 2015, Jones provided Sinclair a January 14, 2015, meeting agenda which listed topics to be addressed at the meeting, including at risk students, failing ninth grade students, RtI, goal-setting with ninth graders, transcript evaluation, and appropriate placement for scheduling. The email requested Sinclair to "please be sure to come prepared with a list of ninth grade students who have failed the first semester." On or about January 13, 2015, Arrojo met with Sinclair and addressed her attendance. He pointed out she had been absent 13 days and it was only halfway through the school year. He also informed her that she only had less than a day of sick leave left. Arrojo further explained that Sinclair had a pattern of non-attendance because most of the absences were tied to days off, a weekend or a vacation.5/ Arrojo questioned Sinclair about the absences four times and she did not respond or answer. Finally, Arrojo directed Sinclair to report to work on a daily basis and explained that Sinclair's numerous absences as guidance counselor caused problems for the guidance department because unlike a teacher who has a substitute replacement, the other guidance counselors had to pick up Sinclair's work when she was out. On January 13, 2015, Jones also sent Sinclair an email rescheduling the meeting time for January 14, 2015, at 1:30 p.m. On that same day, Sinclair incorrectly added classes for a student in Term 1 when it was second semester Term 2, and the student should have been added to Term 2. Each of the student's classes Sinclair scheduled started with a "1" which represents Term 1 instead of "2", which represents Term 2. On January 14, 2015, Sinclair reported to the meeting with the administrators at 1:30 p.m. and then excused herself to the restroom, came back at 1:45 p.m. and refused to answer any questions without a union representative. After she conferred with the union representative, the meeting began at 1:55 p.m. At the meeting on January 14, 2015, Arrojo observed. Jones requested that Sinclair provide the list of ninth grade at risk students that she had asked for previously on multiple occasions and instructed Sinclair to bring to the meeting for review. Sinclair refused to show the administrators the documentation she was holding in her hands or turn it over for review. It was explained to Sinclair that an accurate compilation of at risk students is important in order to determine which students out of the approximate 800 freshmen need extra help to graduate because credits are lacking, a low GPA, attendance issues, or discipline issues. Sinclair's previous reports on at risk students had varied from 21 to as large as 100. Jones had requested a copy of the list Sinclair was working off to review it for accuracy of criteria and properly identify the at risk students that needed plans formulated to help them. Sinclair would not respond to Jones several requests for the list even after she asked her directly. Sinclair just stared at the administrators with no response. Sinclair finally said 100 plus students were on the at risk list. Jones asked for the list a third time and Sinclair did not hand her the list. Jones asked Sinclair did she look on BASIS, the computer database that contains student data, including a tool that compiles list by areas at risk. Sinclair continued to stare blankly at Jones and not answer her. At some point in the meeting, Sinclair finally asked Jones, "does it matter what list?" Jones explained, "Yes, because on BASIS there's only 12 students and you're saying there's a hundred plus students." During the meeting, Jones tried to get Sinclair to open BASIS to look up the list. Sinclair was never able to open BASIS. Sinclair also failed to provide the strategies for at risk students or discuss interventions with Jones and Arrojo during the meeting. She just stared blankly at and through her supervisors. Sinclair never produced the list. At the end of the meeting Arrojo requested Sinclair leave the list that was in her hand but Sinclair just walked out. On January 14, 2015, Principal Arrojo also provided Sinclair a summary memo of the January 13, 2015, meeting and offered Sinclair employee assistance, which she refused. The memo provided expectations with the following directives: You are expected to report to work on a daily basis. This is an excessive amount of absences that has had an adverse impact on the operation of our school be reminded that attendance is an essential function of your job. All future absences will require you to provide a doctor's note verifying that you were ill. However, providing a doctor's note does not excuse an absence for which you have no accumulated sick leave. In order to try to prevent any students from falling through the cracks, Jones personally took the time to create the at risk list and discovered only 15 students were on the failure at risk list, not the 100 Sinclair claimed. On January 16, 2015, Sinclair received a pre- disciplinary meeting notice regarding insubordination. The letter detailed that Sinclair: refused to adhere to My directive to provide the list of at risk and failing 9th grade students that I requested and you refused to respond to inquiries regarding these students at a meeting held in Assistant Principal Ms. Missy Jones' office on January 14, 2015. During this pre- disciplinary meeting we will discuss your insubordination and failure to respond to inquiries regarding your students and your failure to turn in requested documentation. Prior to being placed on PDP Sinclair was provided District based support to see if her deficiencies could be corrected and job duties could be performed at an acceptable level. She received counseling notes, meetings with the guidance director, peer reviewer, and assistant principal. However, Sinclair was still repeating mistakes, not grasping basic guidance functions, making errors and not making progress with all of the support given. On January 23, 2015, Arrojo provided Sinclair a notice for a January 28, 2015, at 9:00 a.m. meeting "for the purpose of writing your Performance Development Plan." On January 28, 2015, Sinclair reported to Western. Arrojo was waiting for her in his office to meet and she left the school grounds around 8:00 a.m. Sinclair's union representative showed up for the meeting and was not aware Sinclair had left the school premises. On January 28, 2015, a memo was provided to Sinclair from the pre-disciplinary meeting held on January 23, 2015, which stated: [R]efused to respond to inquiries regarding your students and your refusal to turn in requested documentation, I have decided to issue you a Verbal Reprimand. Effective immediately, you are to fully answer all inquiries and you will provide an/all requested documentation from your supervising administrator/s. That same day, Arrojo wrote Sinclair another meeting notice, which she ultimately refused to sign, directing Sinclair to report to his office February 2, 2015, at 1:00 p.m. for the purpose of writing her PDP. Sinclair called out on February 2, 2015. On January 29, 2015, a transfer of support meeting was held. Sinclair requested Corridon to be her peer reviewer instead of Suarez because she had a guidance counselor background. Corridon met with Sinclair and discussed the areas of support needed. On February 2, 2015, Arrojo wrote Sinclair a third meeting notice in an attempt to set up a meeting on February 5, 2015, at 12:30 p.m. for the purpose of writing her PDP. On February 5, 2015, a PDP was created for Sinclair. Sinclair was informed that her Instructional Practice Score was 1.898, in the unsatisfactory range. Sinclair was given a 90-day probationary period letter, which stated "failure or refusal to remediate all areas identified as deficient would be less than effective BrIDGES evaluation and/or termination of contract." The PDP highlighted Sinclair's performance concerns, which included but were not limited to the following: failing to systematically tract academic progress of students who were in danger of failing; inability to get participants to record and represent the exchange of information from interactions with the counselor; inability to consistently access and utilize technology to enhance the quality of services; inability to develop or articulate interventions or providing counseling to develop effective behaviors; and failure to collect and analyze data to develop interventions with the RtI framework. On February 6, 2015, Corridon, the second peer reviewer, started coaching Sinclair twice a week. She reviewed and provided assistance in all the areas Sinclair made an unsatisfactory rating on the PDP. On February 9, 2015, Jones emailed Sinclair to instruct her to read Policy 6000.1, and a meeting would be set soon to discuss the policy. Corridon spent coaching sessions going over and over the same areas of assistance with Sinclair. Sinclair would often forget her password, after writing it down. Corridon went over the RtI process manually and the next time Corridon reviewed it with Sinclair, Sinclair was not be able to follow through the RtI process independently. Sinclair did not demonstrate any consistency and there was not much effectiveness in terms of improvement with regards to performance. After Sinclair was placed on PDP, observations continued to ascertain the status of her work performance and progress. Jones observed Sinclair on March 5, 2015, March 8, 2015, March 30, 2015, April 9, 2015, May 1, 2015, and May 8, 2015. Arrojo observed Sinclair on March 3, 2015, March 9, 2015, March 19, 2015, and April 14, 2015. During the observations, Sinclair consistently continued to make numerous mistakes and rarely was capable of performing her job successfully. As a guidance counselor, Sinclair had an office to work from, was provided the opportunity to attend regular guidance department meetings with the other guidance counselors, sit in on plan reviews, schedule reviews, and share other counselor information together. Even so, Sinclair continued to commit constant errors repeatedly. She did not improve and her mistakes endangered the students' graduation timelines, college entrance opportunities, as well as scholarships. Additionally, she put undue strain on the guidance department by having the other guidance counselors in the department stop their workload, pick up Sinclair's work to get it done or correct her errors. Numerous scheduling and transcript errors had to be corrected by the other staff. Sinclair showed minimal improvement and still could not put basic guidance counseling skills into practice. Instead, she repeated the errors even after extensive coaching and one-on-one training. On March 4, 2015, Western had an incoming ninth grade open house. The event is for incoming freshman and their parents from the middle schools to come and learn about Western. Sinclair failed to show up even though she was required to attend and she did not contact any one to let them know she would not be in attendance. Other guidance counselors had to step in and handle Sinclair's table for incoming freshmen. Sinclair never provided an excuse for her absence. Prior to the open house, Arrojo had informed Sinclair that he would be introducing her to the 1000+ visitors at the event. On March 8, 2015, Jones observed Sinclair and memorialized the observation in a post observation summary memo dated March 18, 2015. Sinclair provided 19 records for 11 students, of which only four were at risk, even though Jones had asked her yet again for the at risk students' list as she had been requesting since January. Sinclair was still not providing the at risk student list so that the intervention plans could be created and implemented to provide the services needed by the students. Jones also requested RtI records with the at risk list. The 19 records were all Sinclair supplied from August 2014 to March 8, 2015. At some point, Sinclair said over 100 students were at risk but she only brought four at risk student records to the meeting of March 8, 2015, not the requested list. Sinclair had very little documentation of her efforts to help the students. Sinclair also failed to be able to list or address the traits of Policy 6000.01 as requested on February 9, 2015. Additionally, when asked, Sinclair was unable to discuss quality points, the points provided for higher-level classes like AP that boost students GPA for graduation. Sinclair needed to comprehend and be able to explain quality points to parents and/or students to successfully perform her job. Sinclair only contacted 20 students in December and 63 in January according to her log. Jones determined the number was low since December is only two school weeks. Out of the 83 students contacted, Sinclair failed to address the need of improving one's GPA, which 520 of the ninth graders also needed her assistance with, as well as her providing them with information. By email on March 9, 2015, Corridon scheduled Sinclair to go to Cooper City High School ("Cooper City") on March 16, 2015, at 9:00 a.m. to shadow Clara Able ("Able"), a guidance counselor, so she could observe her day-to-day activities and be taught more counseling skills. On March 10, 2015, Jones emailed Sinclair and requested she provide additional documentation about some items discussed in the earlier March Policy 6000.1 meeting observation. Jones set a deadline of March 13, 2015. Jones requested the information so that she could properly rate Sinclair from the observation. Jones informed Sinclair that she could provide her more time if she could not have the documents ready by the 13th as requested: You mentioned that you call in students, call home to parents to provide tutoring information, etc. Please provide me with recent documentation that corroborates your outreach efforts. Examples of this could be L27 entries, list of targeted students, phone logs, examples of the tutoring services, etc. You mentioned you shared the Quality Points information with parents/students who come to your office. Please provide documentation of who has received this information and what exactly you share with them. At the meeting, Sinclair provided Jones incomplete L panels6/ and student sign in logs, which failed to have the sign out time for the students and incomplete. Out of the 18 contacts provided, Sinclair was only able to provide records for less than 10 students. The backup materials provided did not provide any details of discussions with students she had met with to utilize later for follow up or documentation. Jones reminded Sinclair during the meeting that she was available to help her if needed and even though she was receiving assistance from site-based coaches and a peer reviewer, there were still on-going concerns regarding her performance. By email on March 13, 2015, Jones scheduled a meeting with Sinclair on March 19, 2015. The email notified Sinclair that the meeting would cover RtI, student registration, and SBBC Policy 6000. The email instructed Sinclair, "As we will need to reference documentation on those topics during the meeting, the meeting will take place in your office. Please be ready to refer to items in your possession on the topics referenced above during our meeting." On March 16, 2015, Sinclair showed up approximately an hour and forty minutes late for her shadow session with Able. By the time Sinclair arrived Able, had left Cooper City and Sinclair did not get the counseling training. On March 17, 2015, Jones provided Sinclair a meeting notice to report to the principal's office on March 30, 2015, at 9:00 a.m. to review her PDP. On March 18, 2015, Arrojo hand-delivered a summary memo to Sinclair from the March 13, 2015, meeting, which stated: Middle school registration took place this week at Indian Ridge Middle School. You came to the middle school with the incorrect course cards. You arrived and placed the Grade 10-12 Course Selection sheets (green cards) on the desk to register the incoming freshmen or current 8th graders. Ms. Cohen, Guidance Director, told you those were the incorrect forms and supplied the correct ones to you (blue cards). The next day, you again brought the incorrect Grade 10- 12 Course Selection sheets and placed them on the desk for the incoming 9th grade students to use. Ms. Cohen, Guidance Director, again removed the forms from the desk and provided the correct ones for you. You were unable to start a testing session for the group of students you were proctoring on March 11, 2015. You were trained on protocols for testing administration on February 26th, 2015. You were a Testing Administrator in a session previously held on March 2, 2015. You reported to the computer-based testing session without your laptop on March 11, 2015. As Testing Administrator, your laptop was required in order to start the session and approve students to begin testing. You were searching for a session code in the bin to begin computer-based testing, unaware that one had to be created once you log in as the Testing Administrator. Ms. Cohen, Guidance Director had to log in as Testing Administrator for the session as you were unable to log in after multiple. On March 19, 2015, Arrojo, Jones, and D. Jones observed Sinclair. She was incapable of explaining how a student earns a credit. She confused semesters with nine weeks and included the EOC calculation percentages when explaining the general course calculations. Sinclair also failed to explain how to utilize the forgiveness rule. Sinclair did not have an understanding of how to use the tool to help students make up credit and replace or forgive a student's original bad grade, which helps improve the GPA of the student who failed. Jones scored her beginning for the meeting. During the meeting, Sinclair also displayed her typical responsive behavior to the administrator's questions. She stared blankly in response to pointed questions. Sinclair never provided the RtI list, even though she had been over RtI during the 2013-2014 school year. Ultimately, Arrojo had D. Jones pull the list and D. Jones took over RtI because Sinclair was incapable of performing the task. On March 20, 2015, Cohen met with Sinclair to follow up on the status of the transcripts that had been previously erroneously handled. Sinclair failed to have them corrected by the March 20, 2015, deadline. Cohen used the meeting to provide coaching on accurate future transcript evaluation. Cohen sat with Sinclair one-on-one and went through each folder and listed with her what needed to be done to award the students credit as well as provided examples. Cohen reminded Sinclair to indicate student name and student number, use designated colors to highlight grade level credit earned, and add appropriate assessment codes to EOC courses. During the coaching session, Cohen also pointed out transcript and registration errors. One such error discussed was Sinclair awarding half of a credit to a student when Dade County clearly stated the student was in Term 1 or Quarter 1 and the student could not have earned a credit yet. Cohen never received the requested transcripts. Cohen suggested Sinclair check her drawers for the missing transcripts and Sinclair became upset. The transcript information was not available to be entered into the system and students were not properly placed or were in statuses to miss credits for graduation. The guidance department also had to request transcripts from prior schools a second time because of Sinclair not supplying the transcripts. Sinclair's deficiencies in her performance as a guidance counselor continued almost on a daily basis. On March 30, 2015, a meeting was held to review Sinclair's PDP. Sinclair's Instructional Practice Score had improved minimally to 2.043, needs improvement. The meeting ended with Arrojo agreeing to continue to provide Sinclair observations and coaching in an attempt to help Sinclair improve her work performance. On April 2, 2015, a memo was written regarding the March 30, 2015, meeting outlining Sinclair's ongoing performance issues. The memo detailed the following observations: During the observation, Ms. Sinclair could not identify students that she was the case manager for and therefore, unable to provide strategies for improvement. Ms. Sinclair was able to log in to Virtual Counselor but was not familiar with the RtI layout in Virtual Counselor. During the observation, Ms. Sinclair continued to click on the screen hoping to navigate through the website. Mr. Sinclair was unable to describe how a student earn a credit. In speaking, Ms. Sinclair included the EOC calculation percentages while explaining the general course calculations. On April 7, 2015, Jones conducted a formal observation meeting with Sinclair. A new student from a private school was being registered and enrolling as an incoming ninth grader. Sinclair showed up 15 minutes late without any explanation or apology for tardiness. Sinclair recommended four out of the six classes that were closed to the student. The four classes were all on the closed class list Sinclair had been provided both by a printed copy on April 6, 2015, and emailed on March 30, 2015. After the registration observation, Jones asked Sinclair for the closed class list provided to her. Sinclair had it taped to her desk but she did not use it when registering the student. Jones asked Sinclair to tell her which classes she had recommended to the parent and she could not answer. Sinclair also could not find the student's name in Virtual Counselor. Sinclair's work continued to be unsatisfactory because she failed to competently perform her duties as a guidance counselor; failed to communicate appropriately with students, colleagues, administrators and parents, which caused numerous complaints; stared and refused to acknowledge conversations with administrators; failed to have command of her area of specialization as guidance counselor with the repeated errors. Additionally, she made the same mistakes over and over and did not show improvement or competency. On April 9, 2015, Corridon provided Sinclair's last coaching session. In April, Jones was still trying to get the list from Sinclair of students who failed the first semester even though it was late in the year to start addressing the struggles of failing students. On April 28, 2015, Jones conducted a formal observation and requested Sinclair go through the process of creating a referral in RtI. Sinclair was able to login to the referral database but clicked from screen to screen, unable to either navigate the database properly or record key information. Sinclair also failed to navigate resource sites necessary to provide students resources for assistance. Jones rated Sinclair a beginning for the exercise. On May 1, 2015, a post observation conference was held with Sinclair to discuss the observation of April 22, 2015. Sinclair, David Olafson, and Jones attended. Jones shared the findings from the Marzano observation system, which Sinclair obtained beginning/not using datamarks in design question 2, element 12 and elements M and Q. Specifically, Jones documented the following observations in the memo: Lack of familiarity with the BASIS database when entering students and other pertinent information. The counselor advises students to visit certain websites to begin to do better in school. The students receive no handout with key points or an overview of what the website offers. The counselor does not diversity the resources offered to students in danger of failing and the do not address they students deficiencies. Students in danger of failing were expected to create their own plan for success. Some students have been in danger for failing all year and were not seen until April 2015. On May 6, 2015, a meeting observation for domains 2 through 4 was conducted. Sinclair was asked to pull up the presentation she used for incoming freshmen to discuss graduation requirements. She was not able to find the document after multiple tries. On May 8, 2015, a post observation conference was held to discuss the results of the 30-minute observation held on May 6, 2015. Jones outlined Sinclair's ongoing performance concerns and numerous errors, as well as improper actions, which included Sinclair: improperly inputting 21 out of 38 transcripts reviewed; failing to monitor and assist three students in danger of failing by only meeting with each of them one time in April; failing to review the TERMS panels with each student along with Virtual Counselor; failing to assess the student's deficiencies incorrectly so was unable to offer additional services to the student, which impacted student's placement and graduation status; failing to look at two student's L panels to review their history and help develop the direction to proceed; and failing to provide services to a student who indicated problems at home. That same day Jones notified Sinclair to report to the principal's office on May 15, 2015, for the final review of PDP. On May 15, 2015, Sinclair's final review was conducted. She never was able to perform the basic functions of counseling. Sinclair failed to do the job and her ineptitude continued throughout the PDP process. Sinclair's final Instructional Practice Score was 1.974, unsatisfactory. As a result, Arrojo recommended Sinclair for termination based on her failure to correct her performance deficiencies during a 90-day PDP. After Sinclair left Western, the missing transcripts Cohen had requested from Sinclair and instructed her to look for were found in Sinclair's office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order: dismissing the charge of violation of rules 6A- 5.056(2)(a); finding Respondent in violation of rule 6A-5.056(2)(b), (c), (d), and (e); rule 6A-5.056(3); sections 1012.33, 1012.53(1) and (2); and School Board Policy 4008(B). upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 10th day of March, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2017.
