The Issue The issue in this case is whether Respondent committed an unlawful employment practice against Petitioner by discriminating against Petitioner based on his race and national origin.
Findings Of Fact Mr. Chery, a black male who was born in Haiti, began working for the School Board in August 2007 as a school bus driver. Beginning in August 2008, Mr. Chery’s bus schedule was 4:55 a.m. to 9:00 a.m. and 2:00 p.m. to 5:30 p.m. He was paid for eight hours of work. His early morning route started at 4:55 a.m., when he picked up students to take to the fuel pump in Haines City. The early morning route ended at 6:00 a.m. His next route began at 6:10 a.m. and ended at 7:15 a.m., when he delivered students to the high school. The last portion of the morning route began at 7:30 a.m. and ended at 9:00 a.m., when he delivered students to elementary and middle schools. Mr. Chery’s afternoon route began at 2:00 p.m., when he picked up high school students and took them home until 3:00 p.m. Beginning at 3:00 p.m., Mr. Chery picked up students at Eastside Elementary School and transported them until 4:15 p.m. At 4:15 p.m., Mr. Chery picked up students at Boone Middle School and transported them until 5:30 p.m. Mr. Chery’s pay was calculated based on the time that he picked up his first student in the morning until he reached the school to drop off the students and the time that he reached the school in the afternoon until the time the last student was dropped off. One and one-half hours were added to the travel time to compensate for cleaning the bus and doing paperwork. On August 26, 2008, Mr. Chery was arrested. The arrest was a case of mistaken identity and Mr. Chery was released. After he was released, Mr. Chery felt uncomfortable working his early morning route and asked his supervisor, Jeffery Davis, to relieve him of his duty to drive the early morning route from 4:55 a.m. to 6:10 a.m. Mr. Jeffery Davis thought that Mr. Chery meant that he needed a couple of weeks to get over being arrested, and he accommodated Mr. Chery by getting another driver to take the early morning route. Although Mr. Chery was not required to drive his early morning route, he continued to receive the same compensation that he received when he did drive the early morning route. A couple of weeks after the early morning route was removed, Mr. Chery advised Mr. Jeffery Davis that he did not want to resume the early morning route. Mr. Jeffery Davis told Mr. Chery that a new Verification of Assigned Route Time Form, referred to as a Golden Rod, would need to be completed to show the driving times of his various routes.2 Mr. Chery submitted a Golden Rod, which still reflected his early morning route that he was no longer driving. The Golden Rod which Mr. Chery submitted showed that his morning route ended at 9:00 a.m., when it actually ended at 8:45 a.m., and showed that his afternoon route ended at 5:00 p.m., when it actually ended at 4:45 p.m. Mr. Chery was requested to submit another Golden Rod, which he did. The second submittal also contained similar inaccuracies. In mid October 2008, Mr. Chery’s pay was cut to reflect the deletion of the early morning route. Mr. Jeffery Davis completed an accurate Golden Rod for Mr. Chery. The form reflected that Mr. Chery picked up his first student in the morning at 6:10 a.m. and dropped the students off at Ridge Community High School at 6:40 a.m. At 6:40 a.m., Mr. Chery picked up five students at Ridge Community High School and transported them to Haines City by 7:00 a.m. His next run began at 7:25 a.m., when he picked up students to transport to Horizon Elementary, where the students were delivered at 7:50 a.m. At 7:50 a.m, Mr. Chery started his Lake Alfred Middle School route. The first middle school student was picked up at 7:55 a.m., and the students were delivered to Lake Alfred Middle School by 8:45 a.m., at which time Mr. Chery went off the clock. The afternoon route began at 2:00 p.m. when Mr. Chery picked up students at Ridge Community High School. The last high school student was delivered by 2:40 p.m. The next route began at 3:00 p.m., when Mr. Chery picked up students at Horizon Elementary. The last student from Horizon Elementary was dropped off by 3:30 p.m. The last route for the afternoon began at Lake Alfred Middle School at 3:45 p.m., and the last student was dropped off at 4:45 p.m. An attendant rode the Lake Alfred Middle School bus, and Mr. Chery dropped the attendant off at Walgreen’s pharmacy, which is less than ten minutes away from the last student drop off. The amount of time that Mr. Chery worked was seven hours, which included the time for cleaning the bus and doing his paperwork. Mr. Chery was unhappy that his pay was cut, and he requested a meeting with Mr. Jeffrey Davis’ supervisor, Rob Davis, concerning the amount of pay he was receiving. Mr. Chery, Mr. Chery’s wife, Mr. Rob Davis, and Mr. Jeffery Davis met on December 10, 2008, to discuss the pay issue. Mr. Rob Davis asked Mr. Chery to complete a time verification form for five days, showing the time that he spent each day from the time he picked up the first student in the morning until the time he dropped off the last student. Mr. Chery and Mr. Rob Davis met again on December 18, 2008. Mr. Chery had not filled out a time verification form for five days. Mr. Rob Davis told Mr. Chery to complete a new Golden Rod, reflecting the time that he was currently driving. Mr. Chery failed to complete a new Golden Rod. Mr. Chery requested a meeting with Fred Lee Murphy, who was the assistant superintendent for Support Services and Facilities and Operations for the School Board. His duties included managing the transportation system for the School Board. In January 2009, Mr. Murphy met with Mr. Chery and requested that Mr. Chery complete a current and accurate Golden Rod. Mr. Chery refused to do so, and his employment was terminated for insubordination. Mr. Chery claims the School Board paid white bus drivers for eight hours, when the white bus drivers were working only seven hours, and that he was being treated differently because he was black and from Haiti. He bases his claim on hearsay conversations that he had with some white bus drivers. No non-hearsay evidence was presented to show that white bus drivers were being paid for eight hours of work, when they were working seven hours.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. Chery’s Petition for Relief. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 3rd day of December, 2009.
Conclusions THIS CAUSE was considered by the School Board of Pinellas County, Florida, at its regular meeting held at 5:00 p.m. on December 14, 2004, and the Board, having received and reviewed the record and the recommended order of the Administrative Law Judge, Florence S. Rivas, and the exceptions filed by the Respondent and the response to those exceptions filed by the Superintendent, and having heard argument from counsel for the Respondent and the Superintendent, and being fully advised in the premises, THEREFORE, determines that the Respondent’s misconduct warrants the recommended penalty of termination. IT IS THEREUPON ORDERED by the School Board of Pinellas County, Florida, that: 1. The Respondent’s exceptions to the recommended penalty are denied. 2. The recommended order dated October 7, 2004, to terminate the employment of the Respondent, a copy of which is attached hereto and incorporated by reference, be, and the same is hereby adopted as the Final Order of the School Board. 3. The Respondent, Lincoln M. Loucks, is hereby dismissed and terminated as an employee of the School Board of Pinellas County, Florida, effective the end of the workday, December 14, 2004. DONE AND ORDERED this 14th day of December, 2004. THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA Cha By:'{ ry bees ‘ (ote 2 Attest: fon wil “ N.Wilorf Ex Officio Secretary This Final Order was filed with me on this / ¢ day of December, 2004, and a conformed copy of the same was furnished to Thomas L. Wittmer, attorney for the Petitioner, on said date by hand-delivery, and to Mark Herdman, attorney for the Respondent, on said date by regular U.S. Mail, postage prepaid. Forde Was Betz Deborah Beaty Clerk of the Board NOTICE All parties have the right of judicial review of this Final Order in accordance with section 120.68, Florida Statutes. In order to appeal, a party must file a notice of appeal with Deborah Beaty, the Clerk of the School Board, 301 4" Street S. W., Largo, FL 33770, within thirty (30) days of the rendition of this order (which occurred on the date such Final Order was filed with the clerk as set forth above), and must also file a copy of the notice, accompanied by filing fees, with the Clerk of the Second District Court of Appeal, 1005 East Memorial Blvd., Lakeland, FL 33801, tel. (863) 499-2290. Review proceedings shall be conducted in accordance with the Florida Appellate Rules, and specifically, Rule 9.110 of such Florida Appellate Rules.
The Issue The basic issue in this case is whether the Respondent should be dismissed from his employment as a teacher. The Petitioner seeks such dismissal pursuant to Section 231.36, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) violation of the Principles of Professional Conduct, (b) immorality, (c) misconduct, (d) willful neglect of duties, and (e) moral turpitude. The Respondent denies any misconduct.
Findings Of Fact Based on the evidence received at the hearing and on the parties's stipulations, I make the following findings of fact: Facts stipulated to by the parties Virgil L. Morgan is the duly appointed Superintendent of Schools of Broward County, Florida, and is legally authorized to represent to the School Board of Broward County, Florida, pursuant to statute, that any member of the instructional and/or administrative staff be dismissed from or with the Broward County School System. The address of Virgil L. Morgan is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida. The address of the School Board of Broward County, Florida, is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida. The Respondent, Marion Wright, is an employee of the School Board of Broward County, Florida, holding a continuing contract of employment since December 5, 1968, and has currently been employed at Nova High School, 3600 College Avenue, Davie, Broward County, Florida, as an American History and Geography teacher. The last known address of the Respondent is 151 Northwest 33rd Terrace, Fort Lauderdale, Broward County, Florida. Other general facts While employed at Nova High School, the Respondent was also the coach of the girls junior varsity basketball team. Facts regarding motor vehicle operations The Respondent's ex-students and assistant coaches often moved his car from one place to another on the Nova campus during the school day. These ex- students and assistant coaches were licensed drivers. The Respondent sometimes also permitted several students who were seniors and who were licensed drivers to move his car while it was on campus. It is not unusual for teachers at Nova High School to permit students to drive their cars. There is no credible competent substantial evidence in this case that the Respondent permitted unlicensed students to operate his motor vehicle. On January 22, 1988, Andrea Session and Kim Williams, both students at Nova High School who were also members of the girls basketball team, went to the Respondent's classroom shortly after first period began. Neither of the two girls had a driver license. Kim Williams asked the Respondent for the keys to his pickup truck in order to retrieve her school books which were locked in the truck. The Respondent gave the keys to the two girls and they left. It was not uncommon for the girls to leave their books in the Respondent's truck or car, because the Respondent would frequently drive these two girls (and others) from their home to early morning basketball practice before school. They would often leave their school books in the Respondent's vehicle during basketball practice and pick them up later. On January 22, 1988, while in possession of the keys to the Respondent's pickup, Kim Williams attempted to move the pickup and ran into a parked car in the school parking lot. The Respondent did not authorize Kim Williams to drive his pickup truck on January 22, 1988. Facts regarding taking students out of class The Respondent never requested that Kim Williams, Andrea Session, or any other student or member of his basketball team be excused from other classes, except as was consistent with being excused from class on game days. The Respondent did not write passes requesting that students be excused from other classes. Nor did he usually permit students without passes to remain in his classroom. When Kim or Andrea would come to the Respondent's class without a pass, the Respondent would usually ask them to return to their class. On occasion, Kim and Andrea would skip classes and not go to the Respondent's classroom. There is no credible competent substantial evidence in this case that the Respondent arranged for the unauthorized or illegal removal of any student from scheduled class periods. There is no credible competent substantial evidence in this case that the Respondent provided females students on his basketball team with passes to remove them from their regular scheduled classes on the days that basketball games were scheduled in order for them to rest or relax for the game. Facts regarding transportation of students off campus and to liquor stores The Respondent frequently transported students from their homes to early morning basketball practice. The Respondent has taken adult female assistant coaches to the Double Feature Liquor Store, and to other liquor stores, and has purchased beer for them on occasion. There is no credible competent substantial evidence in this case that the Respondent took students to a liquor store, bought alcoholic beverages, and consumed alcoholic beverages with students. There is no credible competent substantial evidence in this case that the Respondent took students off campus on personal errands during the students' scheduled class periods. Facts regarding soliciting false statements and submitting a false affidavit After the Respondent became aware that he was being accused of providing alcoholic beverages to two students, he went to see Ms. Bonnie Session, the mother of one of the students. The Respondent told Bonnie Session about the situation he was in and asked her to sign a statement on his behalf. Thereafter, Adrienne Session, an older daughter of Ms. Session, called the Respondent and told him she had something for him from her mother. Adrienne gave the Respondent a written statement that purported to be signed by Bonnie Session. The Respondent took the statement to a notary public and asked that it be notarized. The notary called on the telephone and spoke to someone she believed to be Bonnie Session. The person to whom the notary spoke acknowledged having signed the statement. The notary then notarized the document and gave it back to the Respondent. At a later date, under circumstances that are not at all clear, Bonnie Session and her two daughters went to the same notary, after having been guided there by the Respondent, and had some additional documents notarized. The Respondent made some efforts, directly and indirectly, to obtain exculpatory statements from several people, but the nature of those efforts cannot be discerned from the credible evidence in this case. There is no credible competent substantial evidence in this case that the Respondent encouraged any students to falsify their accounts of any matters related to the issues in this case. There is no credible competent substantial evidence in this case that the Respondent intentionally distorted, or caused to be misrepresented, any facts regarding an affidavit that was purportedly signed by Bonnie Session.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Broward County issue a final order in this case dismissing all administrative charges against the Respondent, Marion Wright, and reinstating him with full back pay. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June 1989. MICHAEL M. PARRISH 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 30th day of June 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4734 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. To facilitate an understanding of the rulings which follow, attention is directed to the fact that, for the most part, the testimony of the two principal witnesses against the Respondent has been found to be unworthy of belief and to be an insufficient basis for findings of fact. The two principal accusers have both, while under oath, changed major portions of their stories on more than one occasion. The credibility of their stories is also impaired in large part by the fact that the stories told by the two principal witnesses are inconsistent in a number of telling details, and those stories also conflict with the testimony of other witnesses who are much more worthy of belief. It is also noted that the candor of Respondent's testimony was not without its own tarnish in places. While the Respondent's denial of the charges against him has been accepted in substance, this is largely because of the absence of believable evidence in support of the charges rather than because of any great reliance on the Respondent's candor. Findings proposed by Petitioner: Paragraph 1: Accepted. Paragraph 2: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Paragraph 3: First sentence rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Second sentence accepted. Paragraph 4: For the most part, rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. It is accepted that there was an on-campus accident involving Respondent's vehicle. Paragraph 5: Rejected as irrelevant in light of other evidence in the record. Paragraph 6: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 7: Rejected as irrelevant. [The presentation of the testimony of the Assistant State Attorney appears to have been primarily for the purpose of vouching for the truthfulness of the other witnesses against Respondent. Such vouching is an inappropriate form of proof. See Fuller v. State, 450 So.2d 182, 184 (Fla. 5th DCA 1989).] Paragraph 8: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Findings proposed by Respondent: Paragraph 1: First sentence rejected as subordinate and unnecessary details. Remainder accepted in substance with a few unnecessary details omitted. Paragraphs 2 and 3: Rejected as subordinate and unnecessary details. Paragraph 4: Accepted in substance with some unnecessary details omitted. Paragraphs 5 and 6: Accepted in substance with some unnecessary details omitted. Paragraph 7: Accepted in substance. Paragraph 8: Rejected as a summary of testimony rather than proposed findings of fact. In any event, the subject matter of the summary consists of subordinate and unnecessary details. Paragraphs 9, 10, 11, and 12: Rejected as subordinate and unnecessary details. Paragraph 13: Accepted in substance. Paragraphs 14 and 15: Rejected as subordinate and unnecessary details. Paragraphs 16 through 30: Rejected as constituting, for the most part, a summary of the history of many of the reasons for not making findings of fact rather than actual proposed findings. (Many of the details in this summary form the basis for the conclusion that the testimony of the two principal witnesses against the Respondent is unreliable.). COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Thomas W. Young, III, Esquire General Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida =================================================================
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 The issue is whether Respondent School Board of Bay County (the “School Board”) has good cause under Section 1012.22(1)(a)2., Florida Statutes (2006), to reject the recommendation of Petitioner James E. McCalister, Sr., Superintendent of the Bay County School District (the “Superintendent”), to transfer the Intervenor Larry Bolinger (“Bolinger”) from the position of principal of Bay High School (“Bay High”) to the position of principal of Jinks Middle School (“Jinks”).
Findings Of Fact The Superintendent is the duly elected superintendent of the Bay County School District. He is serving his second consecutive term in that capacity. The School Board consists of five duly elected members: Thelma Rohan, Ron Danzey, Johnny Brock, Jon McFatter, and Donna Allen. Bolinger is an employee and former superintendent of the Bay County School District. The Superintendent defeated Bolinger for the superintendent’s office in the 2000 general election. Bolinger was principal at Merritt Brown Middle School (Merritt Brown) during the 2004-2005 school year. He was principal at Bay High for the 2005-2006 school year. His proposed reassignment from Bay High to Jinks for the 2006-2007 school year is the subject of this proceeding. Bay High, Jinks, and Merritt Brown are located in Panama City, Bay County, Florida. Florida has an “A+ Plan for Education” that grades schools based on student performance. The school grade is determined by student scores on the Florida Comprehensive Assessment Test (“FCAT”). Fred Goodwin was the principal at Bay High for 27 years. Mr. Goodwin’s final year at Bay High was the 2004-2005 school year. He retired after Bay High received a school grade of “D” for two consecutive years. Bay High’s 2004-2005 school score improved by 28 points over the score received during the previous year. The school would have received a grade of “C” for the 2004-2005 school term but for the failure of more than 50 percent of the lowest scoring 25 percent of Bay High’s students (“the lowest quartile”) to make gains on the FCAT exam. Relevant to the subject of Bay High’s performance on the FCAT in recent years, the School Board opened Arnold High School (“Arnold”) on Panama City Beach in 1998. The new high school resulted in a significant reduction in Bay High’s student population because all of the beach students previously had attended Bay High. In order to increase the student population at Bay High and the school’s academic performance, the School Board started a Magnet program at Bay High. Bay High was given $250,000 through a grant to get the Magnet program started. The School Board also provided Bay High with extra teaching units for every year of the Magnet program’s existence. Along with the Magnet program, the Advanced International Certificate of Education (“AICE”) program was initiated at Bay High. One purpose of starting the AICE program at Bay High was to attract high-performing students. Despite such efforts, Bay High received a school score of “D” during the 2003-2004 and 2004-2005 school years. In the years prior to Goodwin’s retirement, Bay High experienced significant problems in areas other than academics. The problems included, but were not limited to the following: (a) the school grounds and facilities were deplorable; (b) many students wandered campus during class time unattended; (c) teacher morale was low; (d) administrators, including Goodwin, were not visible on campus or at school events; (e) students and teachers were disciplined inconsistently; and (f) instructional class time was interrupted for nonacademic events. Knowing that the principal position at Bay high would be vacant after the 2004-2005 school year, the Superintendent advertised the position. Bolinger did not apply to fill the position. The general practice is that during the advertising process, some applicants for a position are screened out simply based upon an assessment of the application. A committee then selects and interviews five applicants. After the interviews, the committee sends the Superintendent the names of three applicants for the position advertised. In the case of the vacancy for principal at Bay High, the Superintendent did not select any of the top three applicants. Instead, he placed the applicants at other schools. On June 21, 2005, the Superintendent contacted Bolinger. The Superintendent requested Bolinger to meet at the Superintendent’s office. At the meeting, the Superintendent offered the Bay High principal position to Bolinger. The Superintendent’s offer did not foreclose Bolinger’s option to remain as principal at Merritt Brown. In the course of their discussion regarding the Bay High position, Bolinger told the Superintendent that he had four years left in the Deferred Retirement Option Program (“DROP”). Bolinger stated that he would take the job at Bay High with the understanding that he would be the Bay High principal for the remaining four years before his retirement.1/ The Superintendent agreed that Bolinger would be allowed to stay at Bay High until his time in the DROP program was complete. Bollinger also told the Superintendent that if he was going to Bay High as principal, he must have two assistant principals. The Superintendent agreed to this condition. Randall McElheney and William Harrison are businessmen in Panama City, Florida, with close connections to Bay High as alums, parents, and volunteers. For the 2005-2006 school year, Mr. McElheney and Mr. Harrison served as business partners in the Partnership to Advance School Success (PASS) program. The PASS program is a cooperative effort between the State, the School Board, Bay High, and the business partner to improve the academic status of individual schools. Prior to the June 21, 2005, meeting between the Superintendent and Bolinger, the Superintendent told Mr. McElheney that there was only one person that could turn Bay High around. That person was Bolinger. After Bolinger accepted the position at Bay High, the Superintendent contacted several other School Board members to inform them of his decision. The Superintendent told Mr. Danzey that Bolinger was the one person in the school district that could lead Bay High. The Superintendent told Ms. Allen that Bolinger was the best person for the Bay High job. Mr. McFatter understood the Superintendent to believe that there was no one else in the district other than Bolinger who could handle the Bay High job. All of the School Board members supported the Superintendent’s decision to transfer Bolinger to Bay High. Not everyone in the community agreed with the Superintendent’s decision. The Superintendent knew that some people, unidentified here, opposed the transfer in part for political reasons. The Superintendent also knew that Bolinger would “ruffle some feathers” and upset certain individuals as he made needed changes at Bay High. On or about June 23, 2005, the Superintendent transferred Bolinger from Merritt Brown to Bay High for the 2005-2006 school year. Bolinger started working at Bay High that same day. The School Board subsequently voted unanimously to approve the reassignment. Bolinger signed a one-year written contract with the School Board for the 2005-2006 school year. The written contract provides as follows in pertinent part: THIS CONTRACT entered into between THE SCHOOL BOARD OF BAY COUNTY, FLORIDA, party of the first part, hereinafter called “the School Board,” and Larry Bolinger (0061), party of the second part, hereinafter called “the Employee.” * * * The School Board agrees to employ the Employee in a position of PRINCIPAL for a period of 12 calendar months beginning July 1, 2005 (same being hereinafter referred to as the “employment period”) . . . . * * * 10. It is expressly understood and agreed by and between the parties hereto . . . that neither the Employee nor the School Board owes any further contractual obligation to the other after the last day of the employment period. The Superintendent has never recommended that the School Board contract with administrative personnel in excess of one year. During his first year at Bay High, Bolinger was able to resolve many of the school’s past problems. With the help of the PASS program business partners, the grounds and facilities were cleaned. The business partners also worked with Bolinger to implement incentive programs to motivate student academic achievement. Attendance improved and students were in class during instructional time. Bolinger established clear definitive roles for each administrator. Teacher and staff morale increased as a clear chain of command and written policies eliminated favoritism. Student discipline became consistent and non-discriminatory. Bolinger and other administrators were visible on campus and at school events. All administrators were accessible to faculty, students, and parents. The faculty was included in decisions regarding the school. Most important, during the 2005-2006 school year, Bay High improved its school score from a “D” to a “C”. The school was eligible to receive a score of “B” on the FCAT, with a numeric score that was 11 points higher than the score received in 2004-2005. However, because less than 50 percent of the lowest quartile made adequate gains on the test, Bay High received a “C”. Beginning around the start of 2006, Bolinger heard rumors that he was going to be removed from his position because he had ruffled some feathers at Bay High. Certain individuals had complained to the Superintendent when they became upset with Bolinger for changing the status quo. Through out the year, Bolinger frequently consulted with the Superintendent about problems at the school. The Superintendent always reassured Bolinger that he was “doing the right thing” and needed to “keep on track.” The Superintendent encouraged Bolinger to be sensitive to students, teachers, and staff, but to keep his focus on improving student performance, especially the performance of the lowest quartile. In May 2006, the Superintendent met with Bolinger. At the meeting, the Superintendent stated that he would recommend Bolinger back as a principal, but not at Bay High. Bolinger stated that he felt betrayed because he had been loyal to the Superintendent. The Superintendent stated that he did not see it that way. The Superintendent never gave Bolinger any other reason for the decision. Once the transfer became public knowledge, the Superintendent and School Board members received e-mails from Bay High students, staff, parents, and community members. A significant majority of these e-mails discussed the improvements that Bay High made under Bolinger’s leadership. They expressed support for his remaining at Bay High. School Board members also received telephone calls from the public for and against Bolinger’s impending transfer from Bay High. The School Board members and Bay High’s business partners questioned the Superintendent’s decision to remove Bolinger as principal at Bay High. The Superintendent would not give anyone a reason, except to say to a couple of people, “That man is going to do what I tell him to do.” Mr. McElheney, one of Bay High’s business partners, funded a radio and sign campaign advocating that Bolinger remain at Bay High. The radio messages urged the public to attend the School Board meeting on May 30, 2006. After speaking with the School Board members, the Superintendent instituted a teacher hiring freeze. The hiring freeze allowed teachers to interview for positions throughout the district but prohibited anyone from being hired. The Superintendent did not want a teacher being hired at a school expecting certain individuals to be the administrators and then change his or her mind after an administrative change. At the May 30, 2006, School Board meeting, the Superintendent recommended the retention of Bolinger, and several other principals and assistant principals, as employees of the School District for the 2006-2007 school year. The Superintendent’s recommendation did not identify the particular school to which Bolinger, or any other principal or assistant principal, would be assigned. This was a departure from the custom of making administrative recommendations, including the school assignment for each administrator. At the May 30, 2006, meeting, the School Board allowed for public comment. At times growing heated, 47 people, consisting of students, parents, teachers, staff, and community members, spoke at the meeting. Again, a significant majority spoke positively of Bolinger and the difference he was making at Bay High. Many people requested that the Superintendent reconsider his decision. After the public comment portion of the meeting, the Superintendent stated that he did not intend to reconsider his decision about transferring Bolinger and would not give a reason for his decision. The School Board then unanimously voted to approve the recommendations as submitted without school assignments and with the understanding that no principals or administrators would be transferred from their current assignments without School Board approval. The School Board met again on June 28, 2006. At that time, the Superintendent made a recommendation to the School Board to transfer five administrators, one of which was the transfer of Bolinger to the position of principal at Jinks. Once again, the Superintendent refused to give the School Board a reason for his decision to transfer Bolinger. The Superintendent would not reveal the name of the person who would replace Bolinger as principal at Bay High. Mr. McFatter made the following motion at the June 28, 2006 meeting: A transfer of the principal from Bay High School this close to the beginning of the school year, coupled with the Superintendent’s hiring freeze, will in a number of ways adversely affect the student and staff of Bay High School and will severely disrupt the operation of the school for the upcoming year. Given the history of Bay High School, it is particularly crucial that this not occur. It is a school that has experienced two “D” school years, and under Mr. Bolinger’s leadership, started down the right road to recovery becoming a “C” school for the 2005-2006 school year. This eleventh hour disruptive recommendation will have an adverse effect on student achievement at Bay High School for the 06-07 school year. Based upon these findings of good cause, I move that the School Board reject the Superintendent’s recommendation that Larry Bolinger be laterally moved from the principal-ship at Bay High to the principal-ship at Jinks Middle School. The School Board unanimously voted in favor of the motion and to reject the Superintendent’s recommendation to transfer Bolinger. This was the first time Mr. Brock, Ms. Allen, and Mr. McFatter had ever voted to reject an administrative personnel recommendation made by any school superintendent. Mr. Brock has served on the School Board for 10 years, Ms. Allen for four years, and Mr. McFatter for two years. Ms. Rohan voted to reject the recommended transfer because of her belief that the Superintendent breached his oral contract with Bolinger regarding Bolinger’s length of stay as principal of Bay High. At the meeting, Mr. McFatter voted to reject the recommended transfer of Bolinger for the following reasons: (a) the transfer would have occurred too close to the beginning of the school year and that, coupled with the hiring freeze, would adversely affect the students and staff at Bay High; (b) the transfer would interrupt operations at the school; and (c) improvement was made at Bay High under Bolinger’s leadership after it experienced two “D” years. During the hearing, Mr. McFatter stated that he voted to reject the recommendation because “everything [at Bay High] was positive in regard to the kids and their achievements. And to derail it without explanation was unacceptable and to my mind was good cause.” At the June 28, 2006, meeting, Mr. Danzey voted to reject the Superintendent’s recommendation to transfer Bolinger because there were improvements at Bay High under Bolinger. Mr. Danzey thought it was too soon for another change in principals at Bay High and that the leadership at the school needed to stay in place. Ms. Allen voted to reject the recommended transfer of Bolinger because keeping the leadership at Bay High was best for the future of the school, its students, and faculty. Ms. Allen did not believe that anyone but Bolinger could implement his plan for improvement of Bay High as well as Bolinger himself. Mr. Brock voted to reject the Superintendent’s recommended transfer of Bolinger because improvements were being made at Bay High, students were feeling better about themselves, and removing Bolinger would harm the students. Mr. Brock stated that the Superintendent’s action was the equivalent of “pull[ing] the carpet” out from under the Bay High students. At some point in time after recommending the transfer of Bolinger, the Superintendent proceeded to advertise the principal’s position at Bay High as open for the 2006-2007 school year. During his deposition and at the hearing, the Superintendent revealed for the first time that he considered two applicants to be qualified for the Bay High job: Bill Payne and Mackie Owens. At the time of the rejection of Bolinger’s recommended transfer, the School Board members were not aware that the Superintendent might consider one of these two individuals to be the principal of Bay High. Payne had applied for the same position in 2005 and had not been selected by the Superintendent. For the 2005/2006 school term, Payne served as an assistant principal at Bay High under Bolinger. If the School Board had approved the recommended transfer of Bolinger, the School Board members would not have had an opportunity to consider the assignment of a Bay High principal until the July School Board meeting. Due to the School Board’s rejection of the Superintendent’s recommended transfer, Bolinger remains principal of Bay High. The Superintendent has not revealed the name of the person he would recommend to be principal at Bay High should Bolinger be transferred. During his deposition and during the hearing, the Superintendent testified that there were multiple factors that precipitated his decision to transfer Bolinger. First, there was an incident that involved the announcing of Bay High’s Top ten seniors for 2006. In late April or early May 2006, the Superintendent requested that Bolinger delay announcing the ten seniors with the highest cumulative grade point average because one student erroneously believed that he should be valedictorian at Bay High. The student’s parents wanted an opportunity to appeal the issue to the School Board on the following Wednesday. The Superintendent and Bolinger agreed that the announcement would not be made until the end of the week after the School Board meeting. On Wednesday, the School Board listened to the parents’ appeal. The School Board took no action to change the decision of the school and the Superintendent that the student academically ranked third behind co-valedictorians. That evening after the School Board meeting, Ms. Rohan, Chairperson of the School Board, went to Bay High where some teachers and staff members were planning an awards ceremony for Thursday morning. Learning that the decision was final, the teachers requested permission from Bollinger to include the Top 10 announcement in the Thursday awards program. Bolinger agreed to make the Top 10 announcement on Thursday. He made this decision because he thought the issue regarding the identity of the valeditorian was resolved and because some of the Top 10 students were not going to be in school on Friday. On Thursday after the announcement, the Superintendent received a call from a parent of the disappointed student. The parent was upset because Bay High announced the Top 10 on Thursday instead of waiting until Friday as anticipated by the parent. The Superintendent contacted Bolinger to inquire about the decision to make the announcement on Thursday. Bollinger explained that it was just a spur of the moment decision. Bolinger offered to apologize to the student’s parents over any misunderstanding about the timing of the announcement. Shortly thereafter, Ms. Rohan informed the Superintendent that she had been to Bay High on Wednesday evening planning for the Top 10 announcement the next day. Ms. Rohan’s statement led the Superintendent to erroneously believe that Bolinger had lied when he said the announcement was a spur of the moment decision. The incident involving the Top 10 announcement was the biggest factor that the Superintendent considered when deciding to transfer Bolinger. If Bolinger had waited until Friday to make the academic awards, the Superintendent probably would have recommended that Bolinger return to Bay High for additional years. Another factor that motivated the Superintendent to transfer Bolinger involved a facilities improvement request from Bay High, which the Superintendent rejected. The Superintendent erroneously believed that Bolinger sent parents to pressure him to change his mind. In April 2006, Bay High’s PASS business partners spoke to the Superintendent about some needed facility improvements at Bay High. The Superintendent agreed to send the district’s Director of Facilities to review a list of suggested needs. One of the improvements was a new baseball dugout, with lockers and a batting cage, as requested by Bay High’s baseball boosters. The Superintendent asked the business partners to follow up with him about the dugout issue in the future. Bolinger, as principal of Bay High, approved the facilities request before sending it to the Superintendent. The Superintendent rejected any request for improvements that were not academically related. Bolinger did not request that the business partners pressure the Superintendent about his rejection of any part of the facilities request, much less a baseball dugout. Bay High’s business partners had a follow-up appointment with the Superintendent on the morning that Bolinger’s recommended transfer became public knowledge. The business partners intended to discuss alternative means of funding the construction of the new dugout. However, the sole issue addressed at the meeting was Bolinger’s transfer. There was no pressure applied to the Superintendent about his rejection of any improvement at Bay High. A third factor that the Superintendent considered was that he thought the district would be better served if Bolinger served as a middle school principal. According to the Superintendent, Bolinger had been very successful as principal at Merritt-Brown. The Superintendent knew Bolinger was a good disciplinarian and believed he could solve some alleged problems at Jinks. However, the Superintendent subsequently had a conversation with the principal at Jinks which resolved any such problems. During the hearing, the Superintendent presented the expert testimony of William Montford, former Leon County School Superintendent and currently Executive Director of Florida Association of District School Superintendents. Mr. Montford’s expert testimony is accepted, limited to his experience as a school superintendent. A school superintendent serves the role of Chief Executive Officer of the school district. For that reason, a superintendent needs control over district personnel and the discretion regarding the placement of those employees. In making those decisions, a superintendent should consider the input from school board members, teachers, parents, and student. Ultimately, it is the superintendent’s responsibility to recommend what he or she believes is best – in terms of personnel placement - for the entire school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board enter a final order rejecting the Superintendent’s recommendation to transfer Larry Bolinger. DONE AND ENTERED this 22nd day of January, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd of January, 2007.
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
The Issue The issue presented herein concerns the appeal filed by Respondent of the school board's assignment of Respondent to J.R.E. Lee Junior High School, an alternative school placement.
Findings Of Fact Based on the entire record compiled herein, including the testimony of Peter Hoffman, Assistant Principal at Centennial Junior High School, I hereby make the following relevant findings of fact. On approximately August 26, 1983, Respondent, Tracy Jean Hidalgo, was assigned to attend Centennial Junior High School. Upon arriving for enrollment at Centennial, within six days of her enrollment, four fires were set in the bathrooms at Centennial Junior High School. Respondent admitted setting the fires when questioned by Assistant Principal Hoffman. Once the fires were set at Centennial Junior High, the regular school program was suspended and the students evacuated the building until the fires were brought under control. As stated hereinabove, Respondent or a representative on her behalf did not appear at the hearing to offer any testimony respecting the charges which prompted Respondent's administrative assignment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's appeal of the school board's assignment of her to the school system's opportunity school program at J. R. E. Lee Junior High School be DENIED. RECOMMENDED this 10th day of February, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, 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 10th day of February, 1984.
The Issue The issue in this case is whether the school Board of Pinellas County (Petitioner) should dismiss its employee, Clarence Davis (Respondent), from continuing contract for misconduct in office and gross insubordination based upon matters alleged in the Superintendent's letters of March 13 and April 24, 1989.
Findings Of Fact Respondent holds a teaching certificate from the State of Florida, and has been employed by continuing contract with the Petitioner since April 21, 1971. In 1986, he was assigned to Azalea Middle School, where he has since been employed. The parties stipulated that during a prior assignment at Riviera Middle School, the principal of that school had warned Respondent to refrain from aggressively touching students. During April, 1986, Dr. Scott N. Rose, Superintendent of the Pinellas County school system, removed Respondent from a counseling assignment at Pinellas Park Middle school, and transferred him to Azalea Park Middle school as a physical education teacher. The Superintendent issued a warning at the time of this transfer that he would recommend a suspension without pay or termination if Respondent's future actions at Azalea Middle school constituted insubordination. During the 1987-1988 school year, Respondent was assigned to a guidance counselor position at Azalea Middle School, but he again had to be removed by the Superintendent. He was warned again that future problems would result in a suspension without pay or a termination. John Leanes became principal of Azalea Middle School in January, 1988, and in October, 1988, he warned Respondent to avoid touching students. In December, 1988, senior administrative officials and representatives of the Petitioner met with the Respondent, and warned him not to touch students. They told him that if he could not meet the standards and expectations of the Petitioner for teachers in the Pinellas County school system, he would be recommended for termination of his continuing contract. The Code of Student Conduct in effect in the Pinellas County school system at all times material hereto provides, in part, that: No form of physical punishment, other that paddling with a paddle is authorized. Corporal punishment may be used only after careful consideration of the facts by the principal, or designee. In no case shall such punishment be degrading or unduly severe in nature. Around the time of the winter holiday during the 1988-1989 school year, Respondent became involved in an incident with a twelve year old female student named M.S. The student was not feeling well, and did not dress out for physical education class. She was lying down in the bleachers. Respondent yelled at M.S. to come down from the bleachers when he observed her talking to other students at the top of the bleachers. When she complied and approached him, he appeared to the student to be very angry, and threatening. He yelled at her so closely that saliva from his mouth struck her in the face. After yelling at her, he pushed M.S. with both hands, throwing her back onto the bleachers. This incident caused the student, M.S., to be frightened and intimidated by the Respondent. Other students observed the incident, and confirmed the testimony of M.S. at hearing. Respondent's actions in this incident reasonably caused M.S. to feel embarrassment, fear, and the threat of physical punishment. On or about March 7, 1989, Respondent yelled at a male student, J.S., and pushed him in the chest with his finger while yelling at him. It appeared to the student that Respondent was trying to provoke him into a physical confrontation. Respondent testified that he was trying to protect another student, K.W., whom he felt was being bullied by J.S. However, K.W. testified that J.S. was not bullying him on this day, and that he and J.S. are friends. Other students witnessed the incident, which reasonably caused the student, J.S., embarrassment, and fear. It is alleged that on March 8, 1989, Respondent also grabbed a student, R.L., by the shoulders, shook him, and yelled at him. R.L. is classified as an emotionally handicapped student, who has been suspended. Students who testified characterized R.L. as someone who talks alot, says bad things about, and fights with, other students, and is generally a trouble maker. Based upon his demeanor at hearing, as well as the testimony of other students about his character, it is found that the testimony of R.L. is not credible. It is reasonable to infer that R.L. heard about the incident the day before with J.S. and the Respondent, and fabricated his allegations to gain attention. Based upon the testimony of Dr. Scott N. Rose and John Leanes, who were accepted as experts in education, as well as the testimony of Stephen Crosby, director of personnel services for Petitioner, incidents such as those between the Respondent and M.S. and J.S. diminish a teacher's effectiveness by creating an improper role model, teaching students that violence is a way to resolve disputes, frightening students, and causing them to be afraid of school and teachers. This creates a negative educational atmosphere, and could potentially increase the school system's liability. In November and December, 1988, the Respondent was suspended without pay on two occasions based upon allegations similar to the ones at issue in this case. The period of these suspensions was three and five days, respectively. The Respondent requested an administrative hearing concerning these suspensions, and following that hearing, Hearing Officer Don W. Davis issued a Recommended Order on April 21, 1989, in DOAH Cases Numbered 88-5720 and 89-0344, recommending that the proposed suspensions be dismissed. A Final Order in this prior case has not yet been entered by the Petitioner.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order dismissing Respondent from continuing contract with the Pinellas County school system. DONE AND ENTERED this 14th day of June, 1989 in Tallahassee, Florida. DONALD D. CONN 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 14th day of June, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1546 Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Rejected as irrelevant. 7-8. Adopted in Finding 11. 9-12. Adopted in Finding 5. Rejected as not a finding of fact but a conclusion of law. Adopted in Finding 6. 15-19. Adopted in Finding 7. 20-24. Adopted in Finding 8. 25-28. Rejected and adopted in part in Finding 9. Adopted in Finding 10. Rejected as not based on competent substantial evidence. The Respondent did not file specific Proposed Findings of Fact, but incorporated argument in a proposed recommended order. Therefore, it is not possible to address specific findings of fact on behalf of the Respondent. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue, Southwest Largo, Florida 34640 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399-0400
