The Issue Whether Brevard County School Board (Petitioner or School Board), has just cause to terminate the professional services contract held by Joyce D. Iloka (Respondent).
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise public schools within the Brevard County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff at THS. At all times material to the allegations of this case, Respondent was an employee of the School Board and was subject to the statutes, rules, and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach drafting at THS. All allegations relate to Respondent's tenure at THS and the performance of her duties as a drafting instructor. By letter dated February 2, 2009, Petitioner notified Respondent that a recommendation would be made to the School Board to terminate her employment with the school district. At its meeting on February 10, 2009, Petitioner accepted the recommendation of the school administration and voted to approve Respondent's employment termination. Respondent timely requested an administrative hearing to challenge the decision of the School Board. Petitioner charged Respondent with failure to correct deficiencies identified in a performance plan designed to assist Respondent to remediate unacceptable defects in her teaching performance. Second, Petitioner alleged that the deficiencies noted by THS personnel also constituted an additional basis for termination: incompetency. Respondent maintains that student performance must be considered in the review of her performance and that she was competent and qualified to perform her teaching responsibilities and had done so for a number of years without concern from the THS administration. Respondent began employment with the school district in 1996. She was assigned to THS from 2004-2008. From her first assignment until the 2007/2008 school year, Respondent received satisfactory performance evaluations. Petitioner utilizes an instructional personnel evaluation system known as the Performance Appraisal System (PAS). PAS was approved by state authorities and was cooperatively developed by teachers and administrators for use in Brevard County. PAS details the procedures, method, and forms to be utilized in the completion of instructional personnel evaluations. All such criteria were met in the evaluations performed of Respondent's work. Additionally, school administrators who perform employee evaluations must be thoroughly trained in PAS and must conform to the uniformity afforded by the PAS instrument. All administrators identified in this cause who performed evaluations of the Respondent were trained and were fully certified to evaluate personnel based upon the PAS instrument. Ron Philpot is an assistant principal at THS. He has worked in Brevard County for approximately 37 years and has been assigned to THS for the last 17. Lori Spinner is the principal at THS. For the 2006/2007 school year, Mr. Philpot was assigned to evaluate Respondent. Dr. Spinner signed off on Respondent's 2006/2007 performance evaluation on February 14, 2007. Respondent's 2006/2007 PAS evaluation found her to be overall "high performing." Mr. Philpot was the only administrator/observer who visited Respondent's classroom in order to complete the 2006/2007 evaluation. In his many years of performing evaluations, Mr. Philpot has given only one unsatisfactory evaluation. On December 4, 2007, Dr. Spinner visited Respondent's classroom for the purpose of observing the class and Respondent's performance. On that date there were 17 students present and Dr. Spinner made visual sweeps of the classroom every ten minutes to determine the engagement level of the students. For the time period from 12:25-12:55 p.m., no fewer than two and no more than four students were off-task or not engaged in the lesson. Dr. Spinner remained in Respondent's class for 45 minutes and completed notes from her observation. Pertinent to the allegations of this case are the following observations entered by Dr. Spinner: Instructional Organization - No teacher-based questioning was used during the entire lesson. No learning objective is evident and no agenda or objectives are noted on the board. Materials are not organized and six incidents of non-instructional/unrelated talk were noted. In the middle of the lesson, the teacher states, "Where are you third block?" "What are you working on?" Directions for activity are vague and non- specific. Teacher states "Put in a window anywhere"; "Put in a door somewhere". Teacher circulated several times to address individual concerns. Presentation of Subject Matter - Only 1 concept was presented during the lesson (rotating windows and doors)and appeared to be a review. No new concepts were presented. Instructions for the project were inadequate and vague. Visuals on the board are illegible and difficult to see. Students demonstrated confusion with assignment. Several questions went unanswered or ignored. Communication - Vague and sporadic. No teacher questioning for comprehension. Student questions went unanswered or hands- raised were ignored. In response to one question, teacher states, "I think it says something about that in your book, I think it says . . ." Teacher expressed confusion in demonstrating a plot plan. Was not able to implement the correct commands with Mechanical Desktop Architect program. Management of Conduct - Several students not engaged during lesson. Five incidents of misconduct were not addressed during the lesson. Based upon the observations noted above, Dr. Spinner met with Respondent to provide her with an interim evaluation of her performance. Of the nine individual assessment categories, Dr. Spinner identified only two items that needed improvement. Both were noted under the "Instructional Strand" heading. Comments entered by Dr. Spinner advised Respondent: Ms. Iloka had several students off task or not engaged in the lesson, throughout the class period. She did not have materials prepared in advance which resulted in lost instructional time. Teacher-student interactions often included unrelated talk and off-task discussions. There were long delays during the instructional lesson and instructions/directions were not clear for students. Requirements for the activity were not presented in advance and directions were vague. This resulted in delays in learning and gaps in instructional activities. Presentation of instructions and project directions were vague and difficult for students to follow. Requirements were not presented in advance. There was no instructional questioning during the lesson to ensure comprehension. Concepts were presented with examples only. Students did not have an instructional visual to reference as they worked with the program. Dr. Spinner attempted to communicate the areas of concern noted above but Respondent was resistant. Further, Dr. Spinner sought to encourage Respondent to continue her education and professional development as a means of continuous professional growth. Dr. Spinner hoped that Respondent would recruit more students into the drafting program because the enrollment had steadily declined during Respondent's tenure at THS. None of Dr. Spinner's suggestions were well-received by Respondent. On January 30, 2008, Dr. Spinner observed Respondent's class from 1:55-2:40 p.m. As before, Dr. Spinner made a visual sweep of the class to determine student engagement every ten minutes. Again, as before, Dr. Spinner observed two to four students not engaged during the sweeps. Many of the comments generated by the January 30, 2008, observation mirrored the prior observation. Dr. Spinner felt Respondent had made no serious effort to improve the areas of concern that needed improvement. The interim PAS evaluation signed by Dr. Skinner and Respondent on February 1, 2008, included three categories that needed improvement and noted that Respondent's overall evaluation needed improvement. To provide assistance for Respondent, Dr. Skinner assigned a teacher/peer mentor at the school level to provide direction and help to the Respondent in order to remediate the deficient areas of performance. Respondent did not avail herself of the mentor and did not implement meaningful changes to her instructional content or delivery. Later Dr. Skinner secured a mentor teacher from outside the school to assist the Respondent. Again, Respondent did not implement the suggestions made by that mentor. Dr. Spinner prepared professional development assistance (PDA) forms for areas of concern in order to identify the behaviors that were deficient, the strategies for improvement of the deficiency, and the assistance that the school would provide to Respondent. For example, the PDA dated February 1, 2008, to improve management of student conduct noted that peer mentor, Jane Speidel, would assist Respondent to develop a classroom management plan so that students who are off-task can be appropriately engaged in the learning process. According to Ms. Speidel, Respondent did not want assistance in this regard and had "no desire to adopt any new changes." On February 19, 2008, Dr. Spinner again observed Respondent's class. Many of the same deficiencies in the categories of instructional organization, presentation of subject matter, communication, and management of conduct were noted. At one point during the observation, Respondent received a sub sandwich and a drink from a colleague. As Respondent had just finished a duty-free lunch time prior to the observation time, the delivery of food during a class period seemed inappropriate to Dr. Skinner. Dr. Skinner’s next observation of Respondent's class was on February 28, 2008. Deficiencies were listed in the areas of instructional organization, presentation of subject matter, communication, and management of conduct. Many of the problems noted in prior observations were continuing. The common thread running through each observation was the failure on Respondent's part to even attempt to incorporate new strategies or concepts into her teaching effort. Specifically, with regard to student performance, students remained off task. Students continued to be confused by vague or confusing directions and exhibited an indifference to drafting. Students were observed sleeping, eating, playing solitaire, and computer games or surfing the Internet when they should have been working on projects or completing appropriate drafting assignments. On March 6, 2008, Dr. Skinner gave Respondent her annual evaluation. Unsurprisingly, Respondent was given an overall evaluation of unsatisfactory. As Respondent had made little or no effort to improve in the areas noted as deficient during the school year (as delineated in prior observations), Respondent was advised: Ms. Iloka is expected to improve in the areas noted as unsatisfactory. A formal plan and support has been provided to assist her in becoming more effective with her students. She is expected to demonstrate improvement as an expectation for continued employment. At the conclusion of the annual PAS evaluation, Respondent was advised that a 90-day probationary period would begin at the start of the 2008/2009 school year. Accordingly, from August 11, 2008, Respondent was subject to PDA plans to address deficiencies in the categories of instructional organization and development, presentation of subject matter, and management of student conduct. The same three areas of concern that were identified throughout the 2007/2008 school year continued to be a concern. On August 11, 2008, Respondent signed a letter acknowledging that she would be on probationary status for 90 days and that she would be evaluated periodically during that time. A resource teacher from the county, John Hays, was identified to Respondent as someone who would provide support and information for presenting the subject matter appropriately and developing a classroom management plan. During the fall of 2008, Respondent was observed on several occasions. None of the visits to Respondent's classroom evidenced any significant improvement on her part to address the deficient areas of performance. Assistant Principal Jerri Mallicoat completed PAS evaluations that noted the same deficiencies. Respondent did not complete lesson plans with sufficient detail so that a substitute could understand and step in for an absence. Respondent did not develop a classroom management plan to ensure that off-task students could be redirected to the assignment. Further, students committing violations of school rules (such as eating in the classroom) were not appropriately disciplined and redirected. Respondent did not avail herself of resources available through the school site mentor or county resource opportunities. Petitioner afforded Respondent with opportunities for improvement through in-service classes and mentor teachers. Respondent is a non-degreed vocational industrial arts teacher. Drafting and other vocational industrial arts classes are commonly taught by credentialed persons who achieve some industry-recognized authorization as sufficient to demonstrate knowledge of the subject matter. Respondent's knowledge of her subject area is not questioned. Her ability to translate that knowledge in a meaningful manner to a classroom of students while maintaining order and on-task behavior and her failure to recognize her need to improve performance in these areas is the subject of this cause. For whatever reason, Respondent would not or could not improve performance in the deficient areas. During the 2008/2009 school year THS used block scheduling. Teachers would have students for 90-minute blocks. Respondent was challenged to fill that time with educational content and maintain students in on-task efforts. Respondent had two blocks of drafting students. Enrollment in drafting declined such that the remainder of Respondent's work day was spent as a substitute for other teachers. Within a block, Respondent had multiple levels of drafting students, first-time drafting students up to the more advanced levels. Each level of proficiency required appropriate instruction. Drafting, like other vocational industrial arts classes, does not have a state-mandated performance assessment tool. Drafting students are recognized in the private sector by whether they are able to achieve an industry-recognized testing standard of performance. Classroom performance at THS was based upon proficient use of the program utilized to create plans and the written materials that accompanied the computer work. Students eating, sleeping, playing solitaire, computer games, or surfing the Internet did not demonstrate proficient use of drafting skills. All of these behaviors were repeatedly observed in Respondent's class. Respondent did not remediate the performance deficiencies noted in the evaluations of the 2007/2008 and 2008/2009 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Brevard County School Board enter a final order terminating Respondent's employment with the School District. DONE AND ENTERED this 8th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 8th day of June, 2010. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Jeffrey Scott Sirmons, Esquire Johnson, Haynes, & Miller 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard DiPatri, Ed. D., Superintendent Brevard County School Board 2700 Fran Jamieson Way Viera, Florida 32940-6601
The Issue Whether Respondent should be assigned to the school system's opportunity school program.
Findings Of Fact At all times material hereto Respondent, Guillermmo Hernandez, was an eighth grade student assigned to South Miami Middle School. While in math class during November, 1988 through January, 1989, Respondent was disruptive in the classroom, tardy on several occasions and unprepared for class. In an attempt to ascertain the reasons for his behavior and to assist him, Respondent's parents were consulted, Respondent was consulted, and Respondent was assigned to detention and work detail. Again, while in home economics class during February through March, 1989, Respondent disrupted the classroom by his antics which on one occasion included piercing his ear and dressing as a girl. Respondent also chased other students, popping them with towels. Here too, his parents were consulted, Respondent was consulted and he was assigned to both outdoor and indoor supervision. Respondent is a disturbed young man who at first appears to be a class clown. He pushes a situation until is becomes a problem and then begs for forgiveness. Further, he does not appear to be learning disabled. However, after repeated attempts to help him, it is apparent that he is unable to control himself in a regular classroom and would benefit from a more structured setting such as the opportunity school program of the Dade County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order affirming the assignment of Respondent to school system's opportunity school program. DONE and ENTERED this 29th day of June, 1989 in Tallahassee, Florida. JANE C. HAYMAN 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 29th day of June, 1989. COPIES FURNISHED: Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Mr. and Mrs. Juan Hernandez 6361 S.W. 33rd Street Miami, Florida 33155 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether the adoption of a rule by the Orange County School Board (Respondent) creating and revising high school attendance zones is an invalid exercise of delegated legislative authority.
Findings Of Fact The Respondent is responsible for operation of the public school system in Orange County, Florida. Specifically relevant to this dispute, such responsibilities include planning all aspects of physical plant operations sufficient to accommodate student enrollment and creation of student attendance zones to populate new and existing school facilities. School facility planning is a multi-year process in Orange County, due to significant population growth historically experienced in the metropolitan Orlando area. The Respondent has developed a standard prototype high school facility designed to accommodate 2,776 students. The development and deployment of the prototype facility is not at issue in this proceeding. In projecting the need to construct new schools, the Respondent's planning staff generally relies upon population growth projections supplied by various local government agencies including the local municipalities within an affected area. In this case, the information reviewed included the general routine data including growth projections received from the City of Ocoee. Western Orange County, including the municipalities of Ocoee and Wekiva, has been a rapidly-growing part of the county, primarily because of the availability of undeveloped land in that portion of the county. The number of schools in the area doubled within the past six years. Three additional new schools are included in the Respondent's ten-year planning horizon for the area. Ocoee High School was constructed to relieve overcrowding at Apopka and West Orange High Schools, and to accommodate 2,776 students. Despite having opened only two years ago, 3,236 students were enrolled at Ocoee High School for the 2006-2007 school year, and the student population was projected at 3,300 to 3,400 students for the 2007-2008 school year. In 2006, the staff of the Orange County School District began the process of creating a school zoning plan intended to populate Wekiva High School, a new facility opening for the start of the 2007-2008 school year. Wekiva High School was constructed to address excess student enrollment at Ocoee and Apopka High Schools and to accommodate projected growth in the vicinity of the school. The Respondent eventually adopted a rezoning plan (the "initial plan") intended to populate the new school with students from other area schools. The Petitioners are parents and students residing in an area previously zoned for attendance at Ocoee High School. (During the rezoning process, the Petitioners' residential area was identified as "Area Z.") Under the initial plan, the student-Petitioners would have been assigned to attend Wekiva High School, approximately five miles from Area Z. The initial plan was the subject of a legal challenge by many of the same Petitioners involved in the instant case. On April 10, 2007, the Respondent rescinded the initial plan. Following the rescission of the initial plan, the Respondent immediately adopted a new 13-step School Attendance Rezoning Process to govern future school rezoning efforts. The rezoning process took effect upon adoption and has not been challenged in this proceeding. On April 11, 2007, the Respondent initiated a second attempt to create a zoning plan to populate Wekiva High School and, ultimately, adopted the plan at issue in this proceeding (the "current plan"). Under the current plan, the students residing in Area Z were again assigned to attend Wekiva High School. The Petitioners have asserted that the current plan is an invalid exercise of delegated legislative authority in that it is "(a) arbitrary and capricious, (b) not supported by competent or substantial evidence grounded in the specific variables identified by School Board policy as controlling in such matters, and (c) is the product of procedural errors that render the Rezoning Ruling unfair and/or incorrect." Four of the Petitioners testified at the hearing on behalf of themselves and their children: Joanne Zeise, Tambra Blevins, James Frey, and Tim MacAllister. Joanne Zeise is the mother of two daughters. One daughter is a senior at Ocoee High School and was not affected by this rezoning proposal. There is no senior class at Wekiva High School. Seniors were allowed to remain in, and graduate from, their previously assigned schools. Ms. Zeise's other daughter is in the 7th grade and, under the current plan, will go to Wekiva High School. The child has not yet attended any high school. Ms. Zeise had hoped that her younger daughter would be assigned to Ocoee High School. Ms. Zeise was previously very involved with Ocoee High School activities. She assisted in setting up the school library, including unpacking and shelving books. She and other parents were apparently instrumental in establishing the school's aquatics program. Her participation in school activities waned as she became involved in the effort to keep her neighborhood assigned to the Ocoee High School attendance zone. Ms. Zeise is opposed to all of the proposed rezoning options that affected her neighborhood. She helped organize neighbors to oppose the rezoning, conducted meetings in her home, and helped raise funds to obtain legal counsel. She attended community and School Board meetings, the Bi-Racial Advisory Committee meeting addressed herein, and met individually with some, if not all, members of the School Board to discuss her opposition to the rezoning. Ms. Zeise is concerned about the alteration to school "feeder patterns" further addressed herein. She testified that her neighborhood had been rezoned previously and that she expected it to be rezoned again, if and when the school district implements improvements to Evans High School, which lies to the east of her neighborhood. Although Ms. Zeise testified as to curriculum differences between Ocoee and Wekiva High Schools, specifically as to upper level math and art classes, the evidence fails to establish that such classes will not be available at Wekiva High School to her younger daughter, who has not yet entered high school. Further, there is no evidence that such classes will remain available to students at Ocoee High School. Ms. Zeise testified that she requested demographic data of assorted residential areas at various meetings so that she could propose additional zoning options, but stated that the requests were verbal and undocumented. School district staff testified that they responded to all formal information requests. The evidence is insufficient to establish that the Respondent failed to comply with any requests for information. Tambra Blevins is the mother of a 9th grade son who will transfer from Ocoee High School to Wekiva High School under the current plan. Ms. Blevins testified that he is unhappy and emotional with the prospect of being severed from school friends by the rezoning, but acknowledged that his academic performance has been stable. There was no evidence offered that the change in schools would impact his academic opportunities or performance. Ms. Blevins was also involved with organizing the effort to oppose the rezoning plan and helping to raise funds and to distribute information to persons who were expected to oppose the plan. There is no credible evidence that Ms. Blevins requested information or data from the Respondent which was not provided. James Frey is the father of a son, a student in the 10th grade at Ocoee High School, who will transfer to Wekiva High School under the current plan. Mr. Frey testified that his son was feeling emotionally stressed by the rezoning changes, but that his grades remained high and that he had a good attitude. Mr. Frey noted that there are curriculum differences between the two schools. The evidence fails to establish that the academic curriculum at either school is superior to the other. Mr. Frey testified that his son wanted to remain at Ocoee High School to take advantage of a building construction program offered there, and which is not offered at Wekiva High School. His son has not yet enrolled in the building construction program. Mr. Frey testified that his son had been unable to enroll because the classes were filled. Mr. Frey testified that his son's application to remain at Ocoee High School had been denied by the Respondent. The basis for the application was unclear; but, according to the letter of denial dated May 23, 2007, the Respondent denied the application "because the Orange County School Board has been placed under a court order by the United States District Court and the United States Fifth Circuit Court of Appeals, which does not permit us to grant an exemption on the basis of your request." Mr. Frey also testified that his son was interested in the Japanese language program at Ocoee High School; but, at the time of the hearing, his son was enrolled in Spanish language classes that are offered at both Ocoee and Wekiva High Schools. He has not enrolled in the Japanese language courses. There is no evidence that the Ocoee High School Japanese classes were unavailable to Mr. Frey's son. Mr. Frey also noted that his son was involved in a freshman mentoring program that was part of his son's work towards becoming an Eagle Scout and that his son was very interested in achieving his goal. Although Wekiva High School apparently had no similar extracurricular program at the time of the hearing, it is reasonable to presume that extracurricular activities will be available at Wekiva High School in response to student interests. There is no credible evidence that Mr. Frey requested information or data from the Respondent which was not provided. Tim MacAllister is the father of a son attending 9th grade at Ocoee High School who will transfer to Wekiva High School under the current plan. Prior to this school year, Mr. MacAllister's son had not entered high school and had never attended Ocoee High School. Mr. MacAllister's son is enrolled in honors classes at Ocoee High School and is enrolled in the Japanese language course that is not offered at Wekiva High School. The Respondent has a policy that permits students to obtain academic transfers from an assigned school to another school in order to complete course sequences not available at the assigned school. There is no evidence as to whether Mr. MacAllister's son has applied for an academic transfer to remain at Ocoee High School. Mr. MacAllister noted that there were curriculum differences between the two schools; but, other than the Japanese class, his son has not enrolled in any courses that are unavailable at Wekiva High School. Mr. MacAllister's son wants to continue on to college after graduating from high school, and his family supports his interest. There is no evidence suggesting that graduating from either Ocoee or Wekiva High Schools would affect a student's college admission prospects. Mr. MacAllister's son is eligible for transportation by bus to either Ocoee or Wekiva High schools. Mr. MacAllister testified that he takes his son to school, and that Ocoee High School is on his way to work, whereas Wekiva High School is not. Wekiva High School is closer to the MacAllister home than is Ocoee High School, and, although Mr. MacAllister opined that the traffic makes travel to Wekiva High School less safe that to Ocoee High, there was no empirical support for his opinion. There is no credible evidence that Mr. MacAllister requested information or data from the Respondent which was not provided. No evidence was presented as to the Petitioners who did not testify at the hearing. As set forth previously, the Respondent, after rescinding the initial rezoning plan, adopted a revised rezoning process. The 13 steps of the revised process are as follows: Step 1: Superintendent commences the rezoning process for the affected schools. Step 2: Pupil Assignment Department prepares a master calendar identifying provisional dates for the rezoning process, including a community information meeting, Bi-Racial Advisory Committee meeting, Rule Development Workshop and Final Public Hearing with their corresponding public notice deadlines. Step 3: Pupil Assignment Department distributes the rezoning master calendar to each Board Member, Superintendent, area superintendents and potentially affected school principals. The master calendar shall be posted at the Educational Leadership Center and at the affected schools, as well as conspicuously posted at the potentially affected schools in the front office. Step 4: Pupil Assignment Department commences its school rezoning analysis for purposes of developing one or more proposed rezoning options. Pupil Assignment staff may consult with each Board member, individually; the affected area superintendents and school principals; and the transportation Department, in order to acquire relevant information and technical assistance needed to formulate suitable attendance zone options. Each rezoning option devised by staff must comply with the applicable desegregation orders. Staff may consider any of the following factors in developing each rezoning option: Anticipated growth and development within the attendance zone Facility design capacities for each affected school Distances and duration of student travel School feeder patterns Adverse impacts to neighborhoods, residential subdivisions or other discrete residential area Step 5: The Director of Pupil Assignment shall certify that each proposed rezoning option is compliant with current desegregation orders; is not arbitrary; and is supported by staff consideration and analysis of one or more of the factors enumerated in Step 4. Step 6: Pupil Assignment staff shall convey the proposed rezoning options to the Bi- Racial Advisory Committee with a request that the Committee consider and make recommendations to the Superintendent concerning any aspect of the proposed attendance zones. The Bi-Racial Advisory Committee is required under the desegregation orders to review proposed changes to school attendance zones. Step 7: Pupil Assignment staff will schedule, notice and attend community meetings. At the community meetings staff will explain the rezoning process, discuss factors considered for each proposed attendance zone, engage in discussion as to each proposal's attributes and obtain community feedback. Step 8: The Director of Pupil Assignment will present each proposed rezoning option to the Superintendent with his or her recommendation, along with the Bi-Racial Committee's recommendations and a report on the community's response to the rezoning options. The Superintendent may reject any or all proposals submitted by the Director of Pupil Assignment and direct that staff undertake an additional review for the purposes of devising alternate options. The Superintendent shall select those proposals to be advertised for a Rule Development Workshop that, in his or her discretion, reasonably balance the factors described above, any Bi-Racial Committee recommendations and community interests. Step 9: School Board Services shall prepare a Notice of Public Rule-Development Workshop ("Workshop Notice") identifying each attendance zone proposal for the affected schools as required by Florida Statutes Sections 120.54(2) and 120.81(d). Step 10: Members of the public shall have an opportunity to speak at the workshop. During the workshop the Board may make modifications to the proposed attendance zones recommended by staff and any recommendations for implementation of those attendance zones. School Board Services Department shall then schedule a public hearing for the formal adoption of a proposed attendance zone. Step 11: Notice of Public Hearing on Proposed Board Action concerning School Attendance Zone Changes will be prepared by Pupil Assignment Department for advertisement in a newspaper of general circulation not less than 28 days prior to the date of the public hearing. The notice shall contain information required by Florida Statutes Sections 120.54(3) and 120.81(1)(d). At the conclusion of the public hearing, the School board may take action to either: (1) adopt one of the recommended options; (2) direct staff to re-advertise for public hearing any substantive modification to a recommended option in accordance with step 11 or (3) reject recommended options and direct that staff undertake an additional review for the purpose of devising alternative attendance zone options. Step 12: Pupil Assignment shall compile a rulemaking record which shall include those materials identified in Florida Statute section 120.54(8), in addition to the following: Written comments and/or questionnaire responses received in connection with the community meetings. Written comments and recommendations received by the Bi-Racial Committee. Step 13: Pupil Assignment shall cause to be filed a certified copy of the proposed attendance zones, the rulemaking record and other relevant materials in the office of Pupil Assignment and make such materials available for public inspection upon request. The Petitioners presented no credible evidence that the Respondent materially failed to comply with any of the steps in the rezoning process. As required by Step 1, the superintendent commenced the rezoning process by approval of a memo dated April 11, 2007, from Sandra R. Simpson, director of Pupil Assignment. The memo included a proposed timeline which formed the basis for the master calendar required in Step 2. The master calendar was distributed to various school officials and posted at the Educational Leadership Center and in various locations at the affected schools as required by Step 3. Additionally, the schedule of meetings and workshops identified in the master calendar was published in a series of legal notices contained in the April 15, 2007, issue of the Orlando Sentinel. The publication included notice of the Bi- Racial Advisory Committee meeting scheduled for April 30, 2007; notice of a community meeting scheduled for May 1, 2007; and notice of the Rule Development Workshop scheduled for May 2, 2007. The notice for the rule development workshop provided an explanation of school zoning and set forth the purpose of the proposed rezoning (i.e., to populate the new school and "equitably and efficiently" redistribute current student populations at existing schools.) The notice specifically identified the new school to be opened and identified the school zones which could be potentially altered by rezoning. As required by Step 4, the Respondent's Pupil Assignment staff eventually developed eight proposed options intended to populate Wekiva High School and reduce student populations at Ocoee and Apopka High Schools. In developing the school zones, the staff utilized information collected during the initial rezoning effort. There is no credible evidence that the information was invalid or unreliable at the time that the options were developed. The analysis began with a review of the two-mile radius surrounding Wekiva High School to identify the number of students residing therein. Approximately 1,100 eligible students resided within the specified area. A two-mile radius was considered because students residing within two miles of the school would not be eligible to ride a school bus to the school, thereby reducing the Respondent's transportation costs. The staff then began to alter the zones to reach an acceptable population level for the three grades, 9 through 11, to be available during the first year of operation at Wekiva High School. In designing the zones, the staff relied upon a highly specialized computer software program that utilizes demographic data capable of identifying individual students residing in specific homes. Some of the data used was sufficiently detailed to provide personal information, including race, grades and FCAT scores, and economic status applicable to individual students. Essentially, the software allowed the staff to create various proposals and review the specific demographic characteristics for each. In relevant part, each option placed approximately 1,750 students in grades 9 through 11 at Wekiva High School, taken from a varying mix of Apopka, Evans, Edgewater, and Ocoee High School zones. All of the affected zones were contiguous to the Wekiva High School zone. The relatively-similar rezoning options differed essentially as to which zone students residing in three specific areas (identified on maps as Areas "X," "Y," and "Z") were assigned. The Petitioners have asserted that the Respondent failed to provide the data upon which the zones were created. The evidence fails to establish that the school board staff refused to assist any person requesting to use the software to devise alternative attendance zones. It is reasonable for the disclosure of the detailed demographic data to be restricted so as to protect information related to individual students. The Petitioners have asserted that the Respondent ignored feeder patterns and issues related to neighborhoods in the rezoning process. The evidence fails to support the assertion. The staff considered the factors set forth in Step 4 of the rezoning process, including existing and anticipated school feeder patterns, neighborhood integrity concerns, various types of transportation barriers, and projected growth within the attendance zones, in developing the rezoning options. To the extent that factors conflicted, those conflicts were reflected within the various proposals eventually submitted to the superintendent for review. The staff did not limit its review to the factors set forth in Step 4. For example, the staff also considered FCAT scores. Students attending poorly performing schools (commonly referred to as "F-Schools") are permitted by law to transfer out of their assigned schools and into other schools. Ocoee High School is a "C-School." Evans High School is an "F-School." The Evans High School zone is immediately adjacent and to the east of the Ocoee High School zone. Staff reasonably presumed that rezoning students from the C-School zone into the closer F-School, rather than into the Wekiva High School zone, would not adequately address issues of overcrowding at Ocoee High School because the newly-transferred students would transfer back from Evans to Ocoee. By federal court order dated September 2, 1980, Orange County was required to revise school attendance zones to desegregate the school system. The court order specifically addressed procedures of modification of school attendance zones. The court order has been amended at various times and was still in effect at the time of the hearing. Minority students comprise 28 percent of the Orange County student population. The Respondent attempted to create attendance zones reflective of the county's general racial demographics. In creating the proposed zones, the staff reviewed matters of racial and economic diversity in order to meet the requirements of a federal court order related to desegregating the Orange County School System. As required by Step 5, Pupil Assignment Director Simpson certified by memo dated April 26, 2007, that each zoning option complied with the desegregation order and was prepared after a logical analysis of the factors set forth in Step 4. As required by Step 6, the eight options were presented to the members of the Bi-Racial Advisory Committee by school board staff on April 30, 2007. The purpose of the committee meeting was to review the rezoning proposals to determine whether any appeared to result in re-segregation of the school system. Some committee members took the opportunity to comment on the proposals at the meeting, while others submitted additional comments to staff on May 1, 2007. All comments were provided to the School Board members at the rule development workshop on May 2, 2007. As required by Step 7, the Pupil Assignment staff attended a previously noticed community meeting held on May 1, 2007, at the Educational Leadership Center and presented the options to the various attending members of the public. Persons in attendance were provided an opportunity to submit oral or written comments regarding the proposed options, and some took advantage of the opportunity. Staff email addresses were also provided to attendees, and more than 40 emails were eventually received by staff. A petition signed by opponents to the plans was also presented to and received by the staff. All communications from the public were summarized and provided to School Board members at the rule development workshop. The Petitioners have asserted that the Respondent failed to comply with the Step 7 requirement that the staff attend community "meetings" because only one meeting occurred. At the hearing, Ms. Simpson testified that she believed it was within her discretion to conduct a single meeting under the rezoning process. Although the requirement does not appear to provide for such discretion, the failure to conduct more than one community meeting is immaterial to this dispute. There is no statutory requirement that a "community meeting" be conducted as part of rulemaking. Additionally, there is no evidence that any potentially-affected person was unaware of the rezoning proposals or was denied an opportunity to review the proposals, to engage in discussion regarding the proposals, or to provide feedback to the Respondent. As required by Step 8, Pupil Assignment Director Simpson met with the superintendent on May 2, 2007, to present the options to him. The superintendent was also provided with the comments from the Bi-Racial Advisory Committee. The staff recommended that Options 1 and 3 be presented to the School Board members at the workshop. The staff disfavored Options 2, 5, 7, and 8 because all four required the purchase of additional school buses to transport eligible students, resulting in increased initial and subsequent operating costs to the Respondent. The staff disfavored Options 4 and 6 because they did not resolve excess population concerns at Ocoee High School. Although the superintendent agreed with the staff, he directed that all eight options be presented to the School Board members at the scheduled workshop. The Notice of Public Rule-Development Workshop required by Step 9 had been published with the other legal notices on April 15, 2007. The notice adequately identified each potentially impacted attendance zone and properly included all information required by statute. The Petitioners have asserted that the Respondent failed to provide notice by mail of various meetings, including the workshop, to persons requesting such notice as required by statute. There is no credible evidence that any person formally requested advance notice of the workshop or other proceedings. In any event, any failure by the Respondent in this regard is immaterial. There is no allegation or evidence that any person potentially affected by proposed rezoning was unaware of the workshop or was denied an opportunity to participate at the workshop based on lack of sufficient notice. The Rule Development Workshop referenced in Step 10 occurred as scheduled on May 2, 2007. The eight options were presented to the Respondent by staff who answered various questions from board members. An opportunity for public comment was provided and a number of persons, including several Petitioners and their legal counsel, spoke at the meeting regarding the options. The Petitioners' legal counsel suggested an additional rezoning option to the Respondent. Ocoee City Commissioner Joel Keller, within whose district the Petitioners reside and who testified at the administrative hearing, made an extended presentation at the meeting. Following a period of discussion, the board members decided to move forward with the proposed "Option 3" rezoning plan and scheduled the public hearing to consider formally adopting the option for June 12, 2007. As required by Step 11, notice of the public hearing (titled "Notice of Intended Action on School Attendance Zone Changes") was published in the May 13, 2007, edition of the Orlando Sentinel. The notice clearly included the information required by Subsections 120.54(3) and 120.81(1)(d), Florida Statutes. The notice was also posted at the Educational Leadership Center and at the potentially affected schools. Approximately two weeks prior to the public hearing, Pupil Assignment Director Simpson prepared a draft resolution for consideration by the board. Ms. Simpson detailed the staff analysis of the process and the various factors considered in the eventual recommendation. The public hearing was conducted on June 12, 2007. The selected option was presented to the board members by the staff, and all of the zoning options and supporting demographic information was available for their review. Another opportunity for public comment was provided, and a number of Petitioners, in addition to other speakers, again advised the board members of their objections. Petitioners' legal counsel again made the same proposal as had been presented at the workshop, and elected officials from the City of Ocoee also spoke to the board. Staff members responded to questions from both speakers and school board members. Following the conclusion of the comment and question session, board members discussed the issue and then adopted Option 3 (the rezoning option challenged in this proceeding) on a vote of 5 to 1. There is no assertion or evidence that the Respondent failed to comply with Steps 12 and 13 of the rezoning process. As stated previously herein, the Petitioners have asserted that the current plan is an invalid exercise of delegated legislative authority in that it is "(a) arbitrary and capricious, (b) not supported by competent or substantial evidence grounded in the specific variables identified by School Board policy as controlling in such matters, and (c) is the product of procedural errors that render the Rezoning Ruling unfair and/or incorrect." The Petitioners presented no credible evidence that the Respondent's adoption of the current plan was arbitrary or capricious. The evidence offered in support of the assertion that the adoption of the rezoning plan was arbitrary or capricious essentially focused on two other high schools in the Orange County School System, Olympia and Evans. The Petitioners asserted that the Petitioners were treated arbitrarily by the Respondent's application of the prototype high school population of 2,776 to this rezoning, while allowing the Olympia High School population to substantially exceed 2,776 and leaving Evans High School operating under capacity. The evidence fails to support the assertion. The Respondent previously attempted to rezone Olympia High School, which was operating in excess of the facility's original attendance design capacity, prior to the rezoning at issue in this proceeding. The Olympia rezoning plan was the subject of a successful legal challenge, and the rezoning did not occur. Permanent modular classroom buildings were placed on the Olympia campus to accommodate the excess student capacity. The Petitioners suggest that the capacity of Ocoee High School be increased in a similar manner. There are more than 20 modular classroom buildings already on the Ocoee High School campus. There is no evidence that the Respondent attempted to rezone Olympia High School for the purpose of expanding the student population beyond 2,776 students. The increase in the authorized capacity at Olympia occurred subsequently to the successful legal challenge and reflected the necessity to accommodate the student population remaining thereafter. The purpose of the current plan is to populate Wekiva High School and relieve the overcrowding at Ocoee and Apopka High Schools. There is no evidence that the purpose of the current rezoning plan is unreasonable. There is no evidence that the Respondent's adoption of the current rezoning plan was arbitrary or capricious. Evans High School has historically operated with a student population significantly less than the facility can accommodate, primarily because many of the approximately 4,000 students living within the Evans zone do not attend school on the Evans campus. Evans High School has a predominately African- American student population. Students in a racial majority at a specific school are permitted to transfer into a school where they are in a racial minority and an apparent significant number exercise the option. Evans is scheduled to be redesigned and relocated during the 2009-2010 school year. School officials believe that in addition to offering "magnet" programs at Evans, the relocation and redesign will increase enrollment and encourage students living within the Evans zone to attend school at the new facility. The Respondent's plans for the Evans High School project are not at issue in this proceeding. There is no credible evidence that the Evans proposal has any relevance to the current rezoning plan. The Petitioners presented no credible evidence to support the assertion that the Respondent failed to comply with "controlling" variables as required by the policy. The specific policy being implemented indicates that the variables, specifically those identified in Step 4, "may" be considered by the staff in developing each rezoning option. The evidence establishes that the staff considered the variables to the extent necessary to develop the options and that the relevant information was available for the Respondent's review of the options prior to adoption of the current plan. The Petitioners assert that the current plan disrupts school "feeder" patterns. A feeder pattern is based on attendance zones whereby students attending a specified school move as a group to another school as their education progresses. The concept of feeder patterns is one of the factors that the Pupil Assignment staff may consider during Step 4 of the rezoning process. The evidence establishes that the staff considered the feeder patterns impacted by the current plan. The policy does not prohibit the Respondent from altering feeder patterns when school attendance zones are created or revised. In addition to consideration of feeder patterns, Step 4 identifies other factors which staff may consider in developing proposals for rezoning. The evidence establishes that the staff considered the factors relevant to each option. To the extent that there was conflict between various factors, the conflicts were recognized, and the information was communicated by staff to the Respondent. The Petitioners presented no credible evidence that the current plan "is the product of procedural errors that render the Rezoning Ruling unfair and/or incorrect." There was no evidence that there were any material procedural errors committed during the adoption of the current plan. Because the Respondent was intent on having the rezoning plan in place by June 2007 so that Wekiva High School could be populated by August 2007, the rezoning process was accelerated, but there is no evidence that the Respondent failed to comply with any deadline set forth within the rezoning process or within the applicable rulemaking provisions of Florida Statutes. The Petitioners generally assert that the Respondent failed to provide "the full panoply of public notice protections mandated by law." There is no credible evidence that the Respondent did not comply with the public notice provisions set forth in Florida Statutes and within the Respondent's new rezoning procedure. The evidence fails to support any assertion that the notice provided by the Respondent was insufficient. The evidence clearly establishes that Petitioners were aware of, and opposed to, the proposed changes to school attendance zones and that they participated throughout the full course of public events. There is no evidence that any potentially-affected person was unaware of the rezoning process. The evidence also clearly establishes that local officials from the City of Ocoee, including Commissioner Keller, were aware of the rezoning proposals. The commissioner engaged in discussions at city meetings, attended various school board meetings and made a significant public presentation to the school board members, submitted written information, and met with individual school board officials regarding opposition to the rezoning plan. The Petitioners asserted that the Respondent failed to comply with applicable rulemaking requirements set forth in Chapter 120, Florida Statutes. There is no evidence that the Respondent materially failed to comply with any statutory requirement related to the adoption of the current plan. The Petitioners asserted that the Respondent violated Subsection 120.54(3), Florida Statutes, by failing to publish a written analysis that would have permitted the "affected public" to challenge the options and formulate a "superior" proposal. The cited statute does not require such publication. The Petitioners asserted that the accelerated process undertaken by the school board in adopting the current plan prohibited them from gathering data and proposing alternative zoning plans to the Respondent. The assertion is not supported by the evidence. The Petitioners have been actively involved in the issue from the beginning of the Respondent's rezoning efforts. There is little apparent substantive difference between the initial plan and the current plan insofar as the rezoning is applicable to the Petitioners. During various presentations and meetings with the Respondent, the Petitioners and their legal counsel made proposals to transfer other neighborhoods in lieu of Area Z into the Wekiva High School zone. The Petitioners assert that the Respondent denied access to data that would have permitted the Petitioners to propose alternative zones. Although the Respondent is required to have sufficient data to support the ultimate outcome of the rezoning process, there is no requirement that the Respondent provide such data to persons seeking to devise alternative zoning plans. There is no evidence that such data was sought through discovery as part of this proceeding. Nonetheless, the Respondent presented evidence that school board staff would accommodate public requests to assist in utilization of the Respondent's software to generate proposals. The Petitioners asserted that the Respondent violated Subsection 120.54(3), Florida Statutes, by failing to publish an analysis of the federal court order's relevance to and impact upon the proposed options. The cited statute does not require such publication. The Petitioners asserted that the Respondent violated Subsection 120.54(3), Florida Statutes, by failing to include a summary of the agency's statement of estimated regulatory costs per Subsection 120.54(3)(a), Florida Statutes. The referenced requirement is only applicable if such a statement has been prepared. There is no evidence that such a statement was prepared in this case. There is no evidence that there are any "regulatory costs" involved in the rezoning plan. The Petitioners asserted that the Respondent violated Subsection 120.54(3)(a)1., Florida Statutes, by failing to include in the published notice of rulemaking a reference to the date and place where the notice of rule development appeared. The evidence establishes that the Notice of Intended Action dated May 13, 2007, stated that the rule development workshop was "advertised on April 15, 2007" and "was conducted at the Educational Leadership Center on May 2," but failed to state that the advertisement was published in the Orlando Sentinel, as were all legal notices relevant to this proceeding. The failure to identify the place of publication is immaterial under the facts and circumstances of this dispute. There is no evidence that the Respondent's failure to note that the advertisement appeared in the Orlando Sentinel resulted in any potentially-affected person being denied an opportunity to participate in the process. The Petitioners asserted that the Respondent failed to comply with Subsections 120.54(3)(a)4. and 120.54(3)(e), Florida Statutes, which require the filing of specified materials with the Administrative Procedures Committee. The Respondent is exempted from such requirements by Subsection 120.81(1)(e), Florida Statutes. The Petitioners asserted that the Respondent violated Subsections 120.54(1)(a)2. and 120.54(2), Florida Statutes, by failing to publish a "complete and readily comprehensive summary of proposed rezoning action in newspaper of general circulation to alert and apprise the average reader of the Respondent's contemplated decision and the public's ability to formulate alternative proposals based upon the same pertinent data." The cited statutes do not require such publication. The Petitioners asserted that the Respondent violated Subsection 120.54(1)(d), Florida Statutes, by failing to "select the rezoning alternative that does not impose regulatory costs on Petitioners and/or Orange County that could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives." There is no evidence that there are any regulatory costs at issue in this proceeding. The Petitioners asserted that the Respondent violated notice requirements by failing to publish all notices required by Chapter 120, Florida Statutes, on the Respondent's website, but there is no statutory notice provision that requires publication on the Respondent's website. The Petitioners asserted that the Respondent failed to provide, by mail, advance notices related to the rezoning to persons requesting such information be provided. There is no evidence that the Respondent disregarded any formal request for information. There is no credible evidence that the Respondent disregarded any informal request for information. To the extent that the Respondent potentially failed to comply with any informal request, there is no evidence that such failure resulted in any potentially affected person being denied an opportunity to participate in the proceeding, and such alleged failure is immaterial. The Petitioners asserted that the Respondent failed to comply with the requirements of the rezoning process, but as discussed previously, the Respondent followed the process and materially complied with the requirements included therein. The Petitioners asserted that the data used by the staff in drafting the proposed zones was flawed. The evidence establishes that there were minor errors, including transposition of numerals in an initial calculation, which were corrected after it was brought to the staff's attention by Commissioner Keller. There is no credible evidence that the data was erroneous at the time the Respondent began considering the proposed zoning options, or when the Respondent adopted the current plan. The Petitioners asserted that the planning projections utilized by the Respondent were erroneous and overestimated the need for facility construction, in turn resulting in unnecessary student transfers caused by rezoning. The Petitioners suggested that the projections include a substantial quantity of residential units either existing or planned in the areas affected by the current rezoning plan, which are unoccupied and unnecessary to accommodate the current residential population. There is no evidence that the Respondent's use of standard population growth data was inappropriate. There is no evidence that at the time the Respondent began planning the construction of the Wekiva High School facility, the Respondent had any reason to presume that projected student population figures may have overstated the need for school facilities. The Petitioners offered no credible evidence that the quantity of residential units in the relevant areas, constructed and unoccupied, is of such significance to be relevant to this dispute. There is no evidence that the Respondent has constructed unnecessary school facilities.
The Issue The issue in this case is whether Respondent's employment contract with Petitioner should be terminated.
Findings Of Fact Petitioner is the school board responsible for hiring, firing, and overseeing all employees at the School. The School, located at 5000 Orange Grove Boulevard, North Fort Myers, is completely fenced in with a gate at the front entrance, which can be left open during normal school hours. After incidents at Columbine High School and the terrorist attacks on September 11, 2001, security at the School was heightened. Respondent is a security specialist at the School and has been employed at the School for almost 30 years. Respondent first worked at the School as a security guard under CETA, a federally-funded training program, starting in 1979. She was then hired as a school board employee. Respondent worked in the school clinic for a short time, but has spent the majority of her time as a security specialist. One of Respondent's primary jobs as a security specialist was to provide security at the front gate of the school. In fact, the majority of Respondent's assignments put her at the front gate, although the School has made efforts to alter her schedule, when possible, so that she would not be stuck in one location. Due to some injuries she had experienced, however, Respondent often found assignment at the front gate to be the most conducive to her ambulatory constraints. On November 10, 2004, Respondent was at the front gate pursuant to her assignment for that day. While she was at the gate, a visitor, Herbert Wiseman, drove up in an automobile. Respondent had known Wiseman for many years and recognized him as a "dignitary" from the school district offices. Respondent waved Wiseman through the gate without stopping him and allowed him to proceed to the front office unannounced.1 This action was in contravention of School policies which required Respondent to stop all cars coming into the School and required an announcement of all officials from the district offices. However, Respondent felt her actions were not inappropriate, because she knew the individual and knew him not to be a threat of any kind. On that same day, a former student, Jamar Barnar, drove his vehicle onto the School campus without being stopped. Barnar parked his car, walked into the School property, and walked freely through the halls until he was seen and identified by a School employee. Barnar ran to his car and drove off campus. Respondent said she thought Barnar was still a student and just let him pass through the gate. Again, that action is in derogation of School policies, but Respondent says she has a good relationship with the students and sometimes allows them to circumvent the rules when she feels it would not be a threat to anyone. Respondent was issued a letter of reprimand by assistant principal Drake regarding the incidents on November 10, 2004. Respondent signed the letter acknowledging receipt, but did not ask for a union representative or otherwise attempt to grieve the letter. In fact, Respondent gracefully accepted the letter and agreed to be more vigilant in the future. The more credible testimony at final hearing established that Respondent was given the opportunity to have union representation, if she desired it. On March 8, 2005, there was another incident relating to security at the School which involved Respondent. Once again Respondent was posted at the front gate. She had been advised that two visitors were expected that day and that she should watch for them, allow them through the gate after questioning, and announce their arrival via radio contact with the front office. When the visitors (a Lee County Sheriff's officer--not in uniform--and a person from the federal Homeland Security Division) arrived, Respondent did not stop them. The visitors, on their own accord, stopped to see if Respondent would question them. She apparently did not. Rather, the visitors were allowed to go unannounced to the front office where they complained to the principal about the lack of security at the front gate. A letter of warning was issued by Principal Lunger and Assistant Principal Drake concerning the March 8, 2005, incident. Respondent was called into the office to review the letter, discuss its content, and sign it. She was offered the right to have a union representative present, but opted not to have one. Respondent acknowledged receipt of the letter of warning by her signature thereon. The letter says it is a "second written notification of a serious performance deficiency." Another letter of warning was issued to Respondent dated February 27, 2008. The basis for this letter of warning was that Respondent allowed a student to leave campus on February 19, 2008, without written permission. The student, who was well known to Respondent, advised Respondent that he had verbal permission from a teacher. However, School policies only allow administration or the front office to allow a student to leave campus. Respondent was aware of the policy, but again thought her relationship with the student was sufficient justification for allowing him to leave. Respondent was offered the right to have a union representative present when the letter of warning was discussed and signed, but she again opted out. Rather, she very amiably acquiesced to the statement of violation and signed the letter without further grievance. A letter of reprimand was issued by Assistant Principals Ken Burns and Steve Casolino dated February 29, 2008,2 relating to incidents that had occurred the previous week. On February 20, 2008, a student was seen on campus who was not supposed to be there and who had not been announced per School policies. Respondent says she had waved the student through, despite knowing it was against policy, because she knew him and had earlier allowed him to leave campus. The student (C.C.) should not have been on campus at that time due to some reason not fully disclosed at final hearing. Nevertheless, upon re-entry to the campus (allegedly with another person in his automobile), C.C. should have been stopped and questioned as to his reason for being on campus. On February 21, 2008, a student was attempting to leave campus without permission. Assistant Principal Casolino began to pursue the student and also called on the radio for security assistance. None of the three guards on duty (including Respondent) answered his call. Casolino called on the radio for the front gate to be shut so the student could not leave; it was not shut. Respondent maintains that she was keeping watch on an unauthorized car that had entered campus at that time. She opted to stay near the car, because it presented the higher security risk. Respondent did not explain why she did not answer the radio call. Respondent was absent from work immediately following the February 20 and 21, 2008, incidents. Upon her return to work on February 28, 2008, Respondent was called to the front office to discuss the letter of reprimand. She was offered the right to have a union representative, but declined. In fact, Respondent was the union representative for the School at that time, although it is unclear whether she could have represented herself or whether she was qualified to do so. There were three copies of the letter presented to Respondent, one of which was to be retained by her. Assistant Principals Burns and Casolino signed each of the three copies. On her copy, Respondent wrote the words "Under Protest" and did not sign it at that time.3 At some point in time, Respondent signed a copy of the letter of reprimand. Respondent remembers that her copy of the letter with "Under Protest" on it was torn up or crumpled and put in the waste basket. However, the photocopy of that letter presented at final hearing does not appear to have been torn up or crumpled. There is another version of the letter with signatures by Burns, Casolino, and Respondent (who signed twice) with the words "Under Protest" on it, but it is obviously not the same one that Respondent left with Burns and Casolino at the meeting. This second letter appears to be Respondent's copy of the fully signed letter upon which she later wrote "Under Protest." There are three different versions of the February 29, 2008, letter in evidence: (1) a letter with no signature by Respondent and the words "Under Protest" on it; (2) a letter signed by Burns, Casolino and Respondent--twice; and (3) a letter signed by Burns, Casolino and Respondent with the words "under protest" and "second copy" handwritten on them. At any rate, Respondent at some point signed the letter of reprimand and did not further file a grievance or complaint about the letter. However, Respondent did draft a letter to Burns and Casolino explaining her actions vis-à-vis the February 20 and 21, 2008, incidents. The letter, which is not signed, is an explanation of her actions, but Respondent did not base a formal grievance on the letter. Each employee of the School Board is evaluated annually concerning their work performance.4 Various categories of job duties are discussed in each evaluation and graded on a scale ranging from U-Unacceptable Level of Performance, to I-Inconsistently Practiced, and then E-Effective Level of Performance Observed. Respondent's 2003-2004 evaluation primarily contained grades of "E," indicating her level of performance was effective or acceptable. However, she had a "U" in the area of "Meets acceptable attendance and punctuality schedule." Comments on that evaluation say "Good worker, but absent too frequently." Respondent was absent 84.50 hours (over two full weeks) during the 2003-2004 school year. The 2004-2005 evaluation contained no "U" grades, but had "I" grades in three areas. There were no written comments on that evaluation form. The evaluation for school year 2005-2006 is almost completely at the effective level of performance, except for one area, "Utilizes leave only when necessary." Comments on the form say, "Total hours absent, 116.5. See below." The bottom of the form indicates 68.5 hours of sick leave, 27.5 hours of personal leave, and 20.5 hours of leave without pay for the period July 1, 2005, through March 23, 2006. This equates to 14.5 work days absent from the job. For the 2006-2007 school year, Respondent's evaluation again had two "I" grades in the areas called: (1) Achieves expected results with few errors; and (2) Utilizes leave only when necessary. The comments section again addresses Respondent's absences. She had 98.5 hours (12.3 total days) of leave; and 26.5 of those hours were without pay, meaning she had used up her allotted leave time. Respondent's last (or latest) evaluation indicates five areas with unacceptable levels of performance. Included in those areas are reviews of attendance and dependability. The comments section refers to the February 27, 2008, letter of warning; the February 29, 2008, letter of reprimand; and the December 5, 2007, warning letter. For that school year, Respondent had 136.25 hours absent, including 62.5 hours of leave without pay. This equates to 17 days absent, with over eight days of leave in excess of her allotted allowance. Respondent is accused of having excessive absences from work. This is a critical issue for the School because, due to budget cuts, there are only three security guards for a campus of over 2,200 students. There had been four guards previously, so teachers were being asked to supplement security by acting as de facto guards when possible. The presence of all three security guards each day was critical to maintaining a high level of security. On April 2, 2007, Respondent had sustained an injury to her right foot. Despite X-rays being taken soon after the injury, the fact that Respondent had fractures in her foot was not immediately ascertained. As a result, Respondent had a period of time that her ability to work was affected by her injury. She was under treatment by medical professionals during the entire 2007-2008 school year. While Respondent was recovering from her injury, the School made sure she had access to a golf cart for moving around campus. It was during this period of convalescence that the School made a conscious decision to assign Respondent to the front gate so that she would be in a position that did not require as much mobility. The excessive number of absences by Respondent caused problems for the School as far as security was concerned. Although the reasons for some of the absences was obviously due to the injury she sustained, there were also a number of absences related to other known (i.e., migraine headache) or unknown reasons. The concerns about Respondent's attendance were taken to the Lee County School District's Human Resources Department by Principal Lunger. Lunger did not know how else to handle the lack of security caused by Respondent's absences. Use of teachers as replacement security guards was simply not an effective means of addressing the problem. Further, the School Board did not have funds available to hire a replacement each time Respondent was absent. The absentee issue was a legitimate concern of the School and was part of the basis for deciding to terminate Respondent's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, upholding the termination of Respondent, Debra Ballard's, employment for the reasons set forth above. DONE AND ENTERED this 23rd day of April, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 2009.
The Issue Did the Lee County School Board (Board) have just cause to suspend Respondent without pay for ten days?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is a corporate and governmental agency duly empowered by the Constitution and statutes of the State of Florida to administer, manage, and operate the public schools within Lee County, Florida. At all times pertinent to this proceeding, Respondent was employed by the Board as an Assistant Principal at Lehigh Senior High School (LSHS). At all times pertinent to this proceeding, Respondent was employed by the Board under an administrator's contract as defined in Section 230.36(3)(a), Florida Statutes. Respondent has taught in the public school system of Florida for 30 years, and in the Lee County school system for the last 18 of those 30 years. During his 30-year career, Respondent has no disciplinary incidents on his record and his evaluations were either satisfactory or above average. Respondent began his tenure with the Board as a teacher and swimming coach at Cape Coral High School on August 17, 1983. On August 9, 1994, Respondent applied for, and was appointed to, the position of Assistant Principal of Student Affairs at LSHS. At the beginning of the 1999-2000 school year, Respondent occupied the position of Assistant Principal for Curriculum at LSHS. During his tenure with the Board, Respondent applied for numerous positions within the Lee County School system. Several of those applications resulted in Respondent being assigned to different positions. However, there were 17 applications filed by Respondent with the Lee County school system that did not result in any kind of a response from the Superintendent's office. Some of these applications were submitted as late as the 1998-1999 school year. By the beginning of the 1999-2000 school year, Respondent had become frustrated because he had not received the courtesy of a response, not even a negative one, to his many applications. As a result of his frustration, Respondent, at the beginning of the 1999-2000 school year, made some inappropriate remarks which resulted in Dr. Harter's suspension of Respondent for 10 days with pay, pending a predetermination investigation and predetermination hearing. As a result of the investigation and hearing, John V. Hennebery, Director of Public Relations, advised Respondent by letter of September 3, 1999, of the recommended disciplinary action to be taken against Respondent. This recommended disciplinary action was that: (1) the letter of discipline was to be placed in Respondent's personnel file; Respondent was to continue counseling until successful completion of the Employee Assistance Program (EAP) is provided indicating that Respondent was able to return to work; (3) a recommendation for 10-day suspension without pay be brought forward to the Board; and (4) upon eligibility to return to work, Respondent would be reassigned to a position of an 11 1/2-month assistant principal on assignment for the remainder of the 1999-2000 school year. By letter dated September 20, 1999, Superintendent Harter notified Respondent that he would be recommending to the Board that Respondent be suspended for 10 days without pay from his position as assistant principal of Lehigh Senior High School. This letter also advised Respondent of his right to contest the Superintendent's decision. By letter addressed to Victor Arias, staff attorney of the Lee County School District, dated September 21, 1999, Respondent, through counsel, requested an administrative hearing on the matter. Respondent submitted to a psychiatric examination by Dr. Newman, Psychiatrist of the Employee Assistance Program, who certified Respondent safe to return to work without any restrictions. Respondent did not undergo any psychiatric treatment. When Respondent returned to work after his suspension with pay, he was assigned as assistant principal at the Alternative Learning Center High School. On September 24, 1999, Superintendent Harter filed a Petition For Suspension Without Pay with the Board requesting that Respondent be suspended without pay for 10 days. Petitioner's Exhibit D is Kimberly McGlohon's notes of her recollection of the comments made by Respondent concerning Lynn Strong on August 12-13, 1999, and the comments made by Respondent on August 11, 1999, concerning Superintendent Harter. These notes were apparently made contemporaneously to the time of the comments. McGlohon's notes indicate that Respondent made the comment, "I am waiting for someone to go down and shoot Dr. Harter." Furthermore, McGlohon's notes indicate that she was outside the Student Affairs office along with Respondent when he made this comment and that Eric McFee, another assistant principal, also heard the comment. On direct examination, McGlohon testified that she was in the Student Affairs office on August 11, 1999, when she heard Respondent, who was in the hallway, say "that someone needed to shoot-go down and shoot Dr. Harter." On cross- examination, McGlohon testified that what she had written in her notes ("I am waiting for someone to go down and shoot Dr. Harter.") was correct rather than her statement made on direct examination. McGlohon's notes indicate that Eric McFee was in the room with McGlohon and heard Respondent's statement concerning Dr. Harter. McFee's notes make mention of this incident, but indicate that the incident occurred on Thursday, August 12, 1999, rather than August 11, 1999. In his direct testimony concerning this incident, McFee testified that he was in the Student Affairs room in August, 1999 (no specific date) with McGlohon when Respondent came into the room and made the statement: "Does anyone want to bet who will shoot Dr. Harter?" McGlohon testified that on August 12, 1999, while attending a district leadership meeting at Three Oaks Middle School, she overheard Respondent make the statement: "Someone needs to shoot Lynn Strong." Sitting at the table with McGlohon were Herman Williams, assistant principal, and Respondent. Williams testified that he also heard Respondent make basically the same statement. Respondent's recollection was that someone said, "They should give Lynn Strong a hand for all she had done." Respondent admitted that he replied: "I would rather someone give her a bullet." On August 13, 1999, at an administrative meeting in the conference room at Lehigh Senior High School attended by McGlohon, Williams, McFee, and Peter Folaros, Principal of LSHS, McGlohon heard Respondent mumbling something but could not make out what he was saying. After this meeting, while following Williams and Respondent down the hallway, McGlohon thought she heard Respondent say that he wanted to shoot Lynn Strong. Williams' recollection was that he thought Respondent said: "Someone should shoot Lynn Strong." Respondent's recollection of this incident was that he was walking down the hall by himself and did not make any comment concerning Dr. Harter or Lynn Strong. Both Williams and McFee recollect that Respondent made inappropriate remarks concerning Lynn Strong and Dr. Harter at the meeting on August 13, 1999, to the effect that "someone needs to shoot Lynn Strong" and "someone needs to shoot Dr. Harter." Neither in his notes nor in his testimony does Folaros, who also attended this meeting, indicate that he heard any inappropriate remarks concerning Dr. Harter or Lynn Strong during the meeting at LSHS on August 13, 1999. None of the individuals (McGlohon, Williams, and McFee) who heard Respondent make the remarks concerning Dr. Harter or Lynn Strong considered the remarks threatening to either Dr. Harter or Lynn Strong but were the result of Respondent's frustration with the system. Around 12:00 noon on August 13, 1999, McGlohon and Williams approached Folaros concerning the inappropriate remarks about Lynn Strong and Dr. Harter made by Respondent. Folaros assured McGlohon and Williams that he would talk to Respondent concerning these remarks. Subsequently, Folaros talked with Respondent about the remarks and advised him of that such remarks could result in dire consequences. Respondent assured Folaros that any remarks made by him were purely off-the-cuff or off-hand remarks and were in no manner meant to be threatening. Additionally, Respondent assured Folaros that he would cease making such remarks. After discussing the matter with Respondent, Folaros called Debbie Diggs, in staff development, who had already been informed of this matter by McGlohon. As a result of the conversation with Diggs, Folaros called Lynn Strong and was advised by Strong that an investigation would be initiated. Although Folaros had assured both McGlohon and Williams that he would talk with Respondent and have the matter investigated, McGlohon took it upon herself to call Lynn Strong, apparently at her home, and tell her the "whole story" on Strong's answering machine. After Respondent's suspension, McGlohon was appointed to fill his position as assistant principal of curriculum at Lehigh Senior High School. Clearly, Respondent's remarks concerning Dr. Harter and Lynn Strong were inappropriate. However, it is equally clear that those remarks were made out of frustration with the system and not intended as threats to either Dr. Harter or Lynn Strong and should be considered as off-the-cuff or off- hand remarks Although Respondent's remarks were inappropriate, the evidence does not establish that Respondent's remarks or behavior jeopardized the life and safety of Dr. Harter, Lynn Strong, or any other staff member of the school district. Likewise, the evidence does not establish that Respondent's remarks or behavior caused fear or disruption in the work environment within the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Superintendent Harter's Petition For Suspension Without Pay filed against Respondent. DONE AND ENTERED this 28th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2000. COPIES FURNISHED: Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Bruce Harter Superintendent Lee County School District 2055 Central Avenue Fort Myers, Florida 33901-3988 Victor M. Arias, Esquire School District of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Harry A. Blair, Esquire 2180 West First Street, Suite 401 Fort Myers, Florida 33901
The Issue The issues are whether Respondent, William Doran, committed the acts alleged in the Statement of Charges and Petition for Ten-Day Suspension Without Pay, and, if so, the discipline to be imposed.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within St. Lucie County, Florida, pursuant to Article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a teacher at SMS, a public school in St. Lucie County, Florida, pursuant to a professional services contract. Respondent has been employed by the School Board for approximately eight years. Respondent most recently provided individualized instruction and assistance to students with individualized education plans. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the St. Lucie Classroom Teachers’ Association. Lydia Martin, principal of SMS, was authorized to issue directives to her employees, including Respondent. The 2010-2011 School Year On November 8, 2010, Respondent was counseled by Principal Martin for discourteous and disparaging remarks to students causing them to feel unnecessary embarrassment. Students and parents reported that Respondent made comments in the classroom including “the Bible is crap and we should not believe it,” told students they could not work in groups because they “would just bullshit,” called a student “stupid,” and referred to a group of African-American students as the “black coffee group.” Parents also expressed concern that Respondent discussed prostitution and told students that, in some countries the younger the girls are, the better it is considered because they have not lost their virginity. Respondent denied saying that the Bible is “crap” but admitted telling students that he did not believe in it. Respondent denied calling a student stupid but admitted that he told a student certain choices may be what a “not so smart” person would do. Respondent admitted to referring to a group of black students as a “coffee klatch,” but denied any reference to race or ethnicity. Respondent admitted discussing prostitution in the context of human rights and his personal observations of sex trafficking while serving in the military in East Germany. Principal Martin provided Respondent with a written Summary of Conference that stated, “In the future, do not make comments to students that may cause them embarrassment or that are unprofessional. My expectation is that you will treat students with respect and follow the district guidelines under 6.302 Employee Standards of Conduct and Code of Ethics for Educators.” On May 2, 2011, Principal Martin gave Respondent a Letter of Concern for making comments to a student that caused embarrassment to the student when Respondent stated that, “somebody cried about not getting their stupid PTO FCAT Goodie bag” and that “they were filled with cheap candy.” The daughter of the PTO president was in the class. The 2011-2012 School Year During the fall of 2011, Respondent was accused of inappropriately touching students.1/ As a result, on December 5, 2011, Respondent was removed from the classroom at SMS and placed on Temporary Duty Assignment at the School Board district office pending an investigation into the allegations. In a letter from Maurice Bonner, director of personnel, dated December 14, 2011, Respondent was directed not to engage witnesses, their parents, or potential witnesses during the open investigation. While he was working at the district office, two co- workers of Respondent overheard Respondent contact the parents of one of the student witnesses involved in the investigation by telephone to discuss the investigation. Also, during the investigation, it was discovered that Respondent had taken pictures of students when they were misbehaving in his class as a means of disciplining those students. On February 13, 2012, Principal Martin provided Respondent a Letter of Reprimand for the violation of the administrative directive (not to contact witnesses and parents during a pending investigation) and inappropriately disciplining students. This Letter of Reprimand reminded Respondent of his previous counseling and Letter of Concern and notified Respondent that his failure to follow the prior directives or violation of any other School Board policy would result in more severe disciplinary action being taken against him. In May 2012, Respondent received a three-day suspension without pay for embarrassing students. Respondent is alleged to have announced a student’s name in class and stated that he (Respondent) was “just wasting red ink” by grading the student’s paper. Respondent does not deny the statement, but claims he muttered it under his breath, and it was overheard by several students. Respondent embarrassed another student by sharing personal information about her family with the class. A student’s mother had privately discussed with Respondent the fact that her daughter might act out in class due to the distress she was experiencing as a result of her parents’ divorce. During a classroom discussion about families, this student made a comment that she had a “normal” family. Respondent said to the student, in front of the class, “If you’re so normal, where is your father?” Respondent admits this was inappropriate behavior on his part. The 2012-2013 School Year On May 3, 2013, Respondent was in the classroom of another teacher for the purpose of providing additional teaching assistance for several students. On this date, the usual classroom teacher was absent, and a substitute teacher was present. While walking around the classroom, Respondent observed two students, M.M. and A.L., engaged in a game of “slaps,” in which both students tried to hit each other’s hands. Respondent directed M.M. to stop and asked why he was doing the game during class time. M.M. responded that he was trying to cheer up A.L., it felt good, and they liked playing the game. At this time, Respondent was approximately eight to ten feet away from M.M. who was sitting at a desk. Respondent told M.M. that he didn’t care if it felt good for M.M. to “jump off a bridge,” it was not to go on in the classroom and to get back to work. M.M. asked Respondent what he meant and the two began to argue. Respondent approached M.M. and bent over him while M.M. remained seated at his desk. Respondent testified that he closed the gap between him and M.M. when he felt M.M. told him to shut up by saying “get out of my face.” Respondent stated, “At that point I decided I wasn’t going to let him push me around and I decided to engage him.” The credible testimony from several of the student witnesses was that Respondent approached M.M. and stood over him and that M.M. repeatedly asked Respondent to “please, get out of my face” and to leave him alone. M.M. also cursed and used a racial slur directed at Respondent.2/ Respondent told M.M. to get up and get out of the classroom. When Respondent did not move away from looming over M.M., M.M. said something to the effect of “I don’t want to do any of this.” M.M. stood up, and he and Respondent were face to face, only a few inches apart. M.M. told Respondent that he was a grown man and that he was “acting like a bitch.” Respondent repeatedly mocked M.M., yelling in his face, “Come on big man-- What are you going to do about it, hit me?” and told M.M. to hit him because it would “make my day.” Respondent called M.M. a coward several times when M.M. refused to hit Respondent and backed away. While this was going on, the other students in the classroom believed that Respondent and M.M. were going to have a physical fight, and they stood up, pushed the desks and chairs back, and got out their cell phones to take photos and video. Several of the students began screaming and yelling.3/ M.M. left the classroom and continued to curse at Respondent as Respondent followed him to the Dean’s office. During this altercation, the substitute teacher did not intervene or attempt to help or contact the SMS office. Respondent admits that, once M.M. told Respondent to “get out of his face,” Respondent did nothing to de-escalate the situation. To the contrary, Respondent intentionally escalated the altercation. According to Respondent, “He [M.M.] needed to be shown you can’t tell an adult to shut up.” Respondent testified that he believed that he was teaching M.M. a “life lesson”-–that “you can’t engage an adult and expect to get away with it.” SMS has a protocol for handling belligerent students in the classroom. Teachers receive training at the beginning of each school year regarding the difference between classroom managed behaviors and office managed behaviors. Teachers are trained not to engage a belligerent student but rather to use the buzzer which is tied to the intercom or telephone, available in every classroom, to notify the main office of the situation. In response, someone from the trained management team will come to the classroom to retrieve the student and bring them back to the Dean’s office. As explained by Principal Martin, the purpose of sending an adult from out of the classroom to retrieve a disruptive student is to minimize the possibility of harm to either the student, teacher, or other students, and to allow a “cooling off period” while the misbehaving student is escorted to the Dean’s office. During the altercation with M.M., Respondent made no effort to use the buzzer or the telephone or ask anyone else to notify the office of the escalating situation. Respondent was aware of the protocol but chose to ignore it. According to Respondent, “[M.M.] wanted to intimidate me and he failed and I let him know about it.” Respondent was purposely confrontational and testified that he wanted to show M.M. that Respondent “was not going to back down.” Respondent disregarded the protocol because he believed it would be ineffective and he wanted to teach M.M. a “humility lesson.” Respondent’s explanation, that he thought using the buzzer or telephone would be ineffective because sometimes the buzzer does not work or he was blocked from reaching the buzzer by M.M., was not supported by credible evidence. Further it was directly contradicted by Respondent’s explanation that he didn’t contact the office because M.M.’s behavior problems likely started in elementary school and that at this point, M.M. was not responsive to “conventional means of disciplining students.” While the undersigned is sensitive to the difficulty faced by teachers when dealing with confrontational and unruly students, no rational justification was provided for Respondent’s extreme and outrageous act of attempting to engage M.M. in a fight and labeling him a coward in front of his peers. Respondent’s actions were an unwarranted attempt to bully and belittle a middle school student. In May 2013, Respondent received a letter from then Superintendent Michael Lannon advising Respondent that he was recommending him to the School Board for a ten-day suspension without pay. During the School Board’s investigation and at the final hearing of this matter, Respondent expressed no remorse regarding his actions towards M.M. and testified that, despite knowing his actions constitute a violation of School Board policies, he would do the same thing again. Respondent received all the necessary steps of progressive discipline required by the collective bargaining agreement between the parties prior to receipt of the recommendation for the ten-day suspension without pay. As discussed in greater detail below, the School Board proved by a preponderance of the evidence that Respondent engaged in misconduct in office in violation of rule 6A-5.056(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Lucie County School Board enter a final order finding William Doran guilty of misconduct in office, suspending his employment without pay for a period of ten school days, and placing him on probation for a period of one year. DONE AND ENTERED this 19th day of August, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 19th day of August, 2014.
The Issue Did Respondent, Liudmila Parker, commit misconduct in office, willful neglect of duty and gross insubordination in violation of section 1012.33(1)(a), Florida Statutes (2011),1/ as well as engage in conduct unbecoming a public employee? Did Ms. Parker violate the Principles of Professional Conduct for the Education Profession and Orange County School Board Management Directive B-12? What discipline, if any, should Petitioner, Orange County School Board (Board), impose on Ms. Parker?
Findings Of Fact Stipulated Facts Admitted by Both Parties2/ The Board employed Ms. Parker as a classroom teacher. Ms. Parker held a Professional Service Contract with the Board. Ms. Parker received a written reprimand on May 3, 2010, for verbal intimidation of students and interfering in an investigation. On November 19, 2010, Ms. Parker received a written reprimand for embarrassing students. On November 29, 2010, Ms. Parker received a 5 day suspension without pay for confronting a student regarding a complaint the student and his parent made about Ms. Parker. From February 9, 2011, through the end of the 2010-2011 school year, Ms. Parker was on relief of duty status without pay. Background Facts Ms. Parker taught ninth-grade English for Speakers of Other Languages (ESOL) at Dr. Phillips High School in Orange County, Florida, during the 2011-2012 school year. Ms. Parker has been teaching for 34 years. She started teaching in Lithuania where she taught for 27 years. In Lithuania she also taught ESOL. Ms. Parker majored in ESOL and has taught it all her life. Assistant Principal of Instruction Dr. Suzanne Knight was Ms. Parker's direct supervisor. When Ms. Parker began work at Dr. Phillips, she was given a copy of the Dr. Phillips High School Faculty and Staff Handbook. She also had access to an electronic copy of the handbook. The handbook included a copy of the Principles of Professional Conduct of the Education Profession in Florida. The handbook also included a copy of Orange County Management Directive B-12, Code of Civility. Ms. Parker read and understood the handbook. Ms. Parker read and understood the Principles of Professional Conduct of the Education Profession in Florida. Ms. Parker read and understood the Code of Civility. The handbook described and emphasized how to use common sense and professional judgment to avoid complications resulting from conduct that violates the Code of Ethics. The handbook included these admonitions: "All co-workers and employees of the district are to be treated with dignity, respect and courtesy at all times." "Use common sense and good judgment. Ask yourself how someone else could perceive your comments or actions. Ask yourself if your comments or actions could be taken out of context and/or misinterpreted." "Avoid putting yourself in a position where you have to defend, explain or justify your behavior or actions." December 8, 2011, Email Dr. Phillips High School Principal Eugene Trochinski observed Ms. Parker's classroom teaching on November 17, 2011. Dr. Knight observed Ms. Parker's classroom teaching on December 5, 2011. Mr. Trochinski and Dr. Knight gave Ms. Parker written comments after observing her performance. On December 8, 2011, in an email to Mr. Trochinski and Dr. Knight, sent at 3:52 a.m., Ms. Parker stated that she had "several questions to ask." The tone and the text of the email were confrontational and belligerent. Each of Ms. Parker's "questions" was in bold face font, something Ms. Parker does to demonstrate her indignation. Some of Ms. Parker's supervisors' observations and her "questions" follow: Observation--"Student in back of room working on Rosetta Stone but not engaged in daily lesson." "Question" "Do you think they should work with the whole group without understanding anything?" Do you think it is better for them???" Observation--"How do you celebrate success in the lesson" There was no evidence of this between teacher and students during my observation." "Question": "Do you want me to interrupt the test and start celebrating success because you came in for observation???" Observation--[Although the specific observation was not reproduced, it was plainly about the students not appearing to be engaged and the lesson being difficult to focus on.] "Question(s)"--"My students demonstrated good behavior and they were listening attentively. Your comments 'Students did not appear to be engaged in the lesson' and 'It was hard to focus on the lesson due to not understanding the starting point' do not make sense at all. Hard to focus for who? For you??? May be. My students were focused!!! Once again,Dr. Knight was in class during Benchmark test results analysis. Her comments show that she does not like to see that students are focused and attentive." Ms. Parker follows her "questions" with: "To sum up, I evaluate the above-mentioned comments of administrators as one more evidence of a biased attitude towards me at school; it is apparent nagging, nothing else." The email ends with a demand to compare and contrast the teacher training at Dr. Phillips with teacher training at Hunter's Creek Middle School and Evans High School. The last words of the email are: "Thank you for your time spent on reading this email. I am looking forward to getting your responses to my questions ASAP." Ms. Parker's explanation for her charges of bias was only that she was a good teacher and, therefore, Dr. Knight must be picking on her. Section 1012.34(3)(c) and Article X, Section (B)(2) of the Contract between the School Board of Orange County and the Orange County Classroom Teachers Association impose a duty on Dr. Knight and Mr. Trochinski to evaluate the performance of teachers under their supervision, including Ms. Parker. This observation and assessment is not "nagging" or "bias." Ms. Parker's December 8, 2011, email about their observations was discourteous, disrespectful, uncooperative, and a display of temper. It interfered with her ability to perform her duties and the ability of Dr. Knight and Mr. Trochinski to effectively perform their duties. Ms. Parker's email also demonstrates a refusal to take responsibility for her own actions and statements. Ms. Parker's testimony about a later conversation with Ms. Knight affirmed the hostility to criticism and suggestions for improvement recorded in her email. One example is her lengthy answer, at page 430, line 16 of the Transcript, to the question "How long would she [Dr. Knight] come in to your class?" Ms. Parker's answer included this statement, with emphasis supplied: So--and then when she said that it doesn't coincide, I asked, Okay, Dr. Knight, for example you were in my class on December 5th, and you saw--and she wrote down, she had in her notes--that we were going to read and work with fluency based on the story The Birds. And she said, yes. I said, Then why do you say that my lesson plans do not coincide with what I was teaching? She said, Hum, I came in at the beginning and then I don't know what you were teaching. I said, Do you think that I wrote this agenda for the president or somebody else? I wrote for the students. I cannot just write the words and do something else. I don't know. It seems to me there is common sense here. Yeah. So she was just arguing. And her statements, I don't know. This statement was a display of temper, discourteous, disrespectful, and uncooperative. It also interfered with Ms. Parker's ability to perform her duties and the ability of Dr. Knight to perform her duties. Because of the December 8, 2011, email, Dr. Knight held a conference with Ms. Parker on December 9, 2011, about the email. Dr. Knight explained what was wrong with the email. She also advised Ms. Parker of the importance of being careful when writing emails because of the risks that a writer may not be as polite as they would be in a personal conversation and the risk that emails may be written and sent when emotions are running high. Ms. Parker reiterated her claims that all criticisms were due to bias. Ms. Parker interrupted Dr. Knight and said "Let's have a dialogue not a monologue." During the meeting of December 8, 2012, Ms. Parker did not acknowledge any validity to any of the concerns raised. She did, however, complain about training and lack of support. During this meeting, Ms. Parker communicated in person as she had in the email. She again demonstrated an inability to accept criticism and responsibility for her own actions. She was again discourteous, disrespectful, and uncooperative and displayed her temper. Ms. Parker's behavior interfered with her ability to perform her duties and the ability of Dr. Knight to perform her duties. Ms. Parker's approach was the same during her testimony. She testified that she had a right to tell an administrator to stop talking and let her speak. Ms. Parker impatiently described the December 8 meeting as useless. In her words starting at page 556, line 17: Yes, I can [tell an administrator that she should stop talking]. Because she was starting to say again and again, and I have no time to sit the whole planning period without any production, without any use, because my planning period I'd rather spend with students. By the way, at that meeting, I wanted to stand up and leave her office, because she didn't want to listen to me. She was only talking, talking, talking. For monologue, she could send me an e-mail. If it was a dialogue--meeting is meant for dialogue, for exchanging ideas, for talking, to discussing [sic] things, but she was just talking and talking. That's why I said, Let us have dialogue, not monologue, because she was speaking 15 minutes. Later in her testimony, Ms. Parker dismisses Dr. Knight's efforts to explain what Ms. Parker had done wrong and suggest improvements this way: "She brought me there to discuss things. Instead of discussion, she began to say boring things, repeating." Ms. Parker's testimony reflected the confrontational and belligerent approach manifested in her emails and conversations during her employment. She repeatedly expressed her view of her superiority as a teacher and her view that all criticisms were unfounded and unfair. She never acknowledged even a possibility that any of her actions or communications were improper. "Elements of Literature" Communications On January 5, 2012, Ms. Parker lunched with fellow teacher Brandi Boone and two other teachers. During lunch, Ms. Parker said that she did not use the "Elements of Literature" curriculum book and had not used it since the beginning of the year, because it was "too difficult" for her students. On January 11, 2012, Dr. Knight conducted an ESOL meeting to address aligning the ESOL curriculum with the general English curriculum. Having both general and ESOL students use the "Elements of Literature" curriculum was part of the school's required teaching strategy. During the meeting, Ms. Parker told Dr. Knight that she used the "Elements of Literature" curriculum and that she loved it. On January 12, 2012, Ms. Boone approached Dr. Knight and told Dr. Knight about Ms. Parker's statement during the January 5, 2012, lunch meeting that she was not using "Elements of Literature" because it was too difficult for her students. On January 17, 2012, Dr. Knight called Ms. Parker in to her office. Assistant Principal Alisa Dorsett was present. During the meeting Dr. Knight asked Ms. Parker if she used "Elements of Literature." She asked because of her observations of Ms. Parker's classroom teaching and Ms. Boone's statements. Ms. Parker said that she was. Because of what she had observed and what Ms. Boone had reported, Dr. Knight questioned the accuracy of this. She told Ms. Parker she thought that Ms. Parker was "being less than honest." This was a fair observation based on the information known to Dr. Knight. During the meeting, Ms. Parker repeatedly got up and tried to go behind Dr. Knight's desk to show her documents. Dr. Knight repeatedly had to ask Ms. Parker to sit down. At the end of the meeting, Ms. Parker told Dr. Knight that "If you want to go to court, we can go to court." Ms. Parker testified that she said: "Shall we go to court? We'll go to court." Regardless of the exact wording, the gist of the comment is the same. The comment, like Ms. Parker's conduct in the meeting, was a combative, discourteous, threatening, and uncooperative response to Dr. Knight's attempt to address a professional issue. The comment and Ms. Parker's behavior in the meeting also interfered with Ms. Parker's ability to perform her duties and the ability of Dr. Knight to perform her duties. It is not the fact that Ms. Parker wanted to exercise her legal rights that is improper. It is the way she expressed it that is improper. Ms. Parker's repeated attempts to move behind Dr. Knight's desk were also combative, discourteous, threatening, and uncooperative. Emails of January 17 and 18 After the January 17 meeting, Ms. Parker wrote emails to Dr. Knight and Ms. Dorsett. In her January 17 email to Ms. Dorsett, Ms. Parker asked Ms. Dorsett to write in her notes that Dr. Knight told Ms. Parker that she was a dishonest person and that Ms. Parker had lied during the ESOL meeting. Ms. Dorsett replied that she would write that Ms. Parker had asked to have that statement included in her notes. But Ms. Dorsett testified that she did not agree that the requested additions were accurate. Ms. Parker sent another email to Dr. Knight on January 18, 2012, in which she said that Ms. Dorsett had not responded to the January 17 email. Ms. Parker then asked in the email, "So who is dishonest then?" The statement is discourteous, disrespectful, a display of temper, and uncooperative. It also interfered with Ms. Parker's ability to perform her duties and the ability of Dr. Knight and Ms. Dorsett to perform their duties. Communications with Ms. Boone On Sunday, January 22, 2012, at 12:49 a.m., Ms. Parker sent Ms. Boone an email. In it, Ms. Parker accused Ms. Boone of telling Dr. Knight that she grouped her students by ethnicities. Ms. Parker, who suspected but had not confirmed that Ms. Boone told Dr. Knight that she said she did not use "Elements of Literature," went on to discuss her usage of "Elements of Literature." The email concluded: "My colleagues who create slanders will be really upset when investigation starts. According to The Principles of Professional Conduct, 'the educator shall maintain honesty in all professional dealings.' You have to be honest and tell the truth. You must take responsibility for your words and actions." The statement was threatening. Ms. Parker intended to convey to Ms. Boone that she would sue her for slander. Exercising your legal rights, including in a work place context, is not inherently improper. But Ms. Parker's threat of investigations and slander suits reduced her ability to effectively perform her duties, reduced Ms. Boone's ability to effectively perform her duties, harassed Ms. Boone, created a hostile and intimidating environment, and was bullying. Ms. Boone replied in an email of January 22, 2012, at 8:24 p.m. She denied accusing Ms. Parker of grouping students by ethnicity. She acknowledged providing information to Dr. Knight and that she was appalled when Ms. Parker told Dr. Knight she used and loved "Elements of Literature." In a second email a few minutes later, Ms. Boone said that she wanted Dr. Knight present for any further conversations between her and Ms. Parker about students or Ms. Parker's claims. Ms. Parker responded with a lengthy email that included the following series of sarcastic and combative statements. You showed yourself a very disrespectful person accusing me, a veteran teacher, who is 2 times older than you, who has worked 34 years at school. I also noticed that you have hearing problems. Am I right? Maybe you misunderstood something and jumped to conclusions? Besides, I love humor. Boring people do not understand it as a rule. And guess what? I have a lot of students' works done during the first semester based on "Elements of Literature", and I can show them to everybody at any time. I showed them to Dr. Knight. Why should I tell [sic] that I did not work with EL??? You saw my students' projects too. In your class there are no students' works at all! To sum up, you violated the Principles of Professional Conduct: Obligation to the Profession of Education (d) and (e) because you created offensive environment and made a malicious statement about your colleague (me). Now you will have to take responsibility for your words. After your actions I have no desire to communicate with you at all, but because of working conditions I will have to have "that pleasure", only in the presence of Rita or administrator. Ms. Parker's statements in these email communications harassed Ms. Boone and created a hostile, intimidating, and oppressive environment. The statements were discourteous and interfered with the ability of Ms. Parker and Ms. Boone to perform their duties. Midpoint Evaluation Dr. Knight met with Ms. Parker on January 19, 2012, to discuss her midpoint evaluation. Assistant Principal Bridget Bresk attended as a witness. During the meeting, Dr. Knight gave Ms. Parker a direct and reasonable order to acknowledge that she had received the written mid-point evaluation. Ms. Parker had not acknowledged receipt as requested when she was provided the evaluation. The acknowledgement form only asked the teacher to acknowledge receiving the evaluation. It did not state or imply that the teacher agreed with the evaluation. Ms. Parker refused. Ms. Parker said that she would not acknowledge receipt of the evaluation because she did not agree with it. Dr. Knight explained that the acknowledgement simply stated that Ms. Parker had received it and did not say that Ms. Parker agreed with the evaluation. Ms. Parker still refused. She told Dr. Knight that "acknowledge" means to agree and that Dr. Knight "should look it up yourself." Ms. Parker intentionally refused to obey a reasonable direct order given by her direct supervisor, Dr. Knight. Ms. Parker was also discourteous and uncooperative. Her conduct impaired Dr. Knight's ability to perform her duties. During the meeting, when they discussed what Ms. Parker needed to improve, Ms. Parker told Dr. Knight "sorry for breathing." She sought to justify the comment by saying it was an "American expression." Ms. Parker also told Dr. Knight her comments after the classroom observation about celebrating student success were "ridiculous." At the meeting's end, Ms. Parker told Dr. Knight one of the following: "I have people who will take care of me and I have people who will take care of you"; "There are people who will take care of me and take care of you."; or "There are people who will take care of me and you." There are no material differences between the three statements. Any version is a threatening and bullying statement. Ms. Parker's argument that she was only stating the obvious, that she could file a grievance, is not persuasive. She made no reference to a grievance in the meeting. Her words plainly convey a darker impression than "we may have to agree to disagree and resolve our disagreements legally" or "I will file a grievance about this." The preceding comments were threatening, bullying, discourteous, disrespectful, and uncooperative. Also, throughout the meeting, Ms. Parker's conduct impaired the ability of Dr. Knight and Ms. Parker to perform their duties. After the meeting, Ms. Parker sent Dr. Knight two emails. The first, sent at 5:20 p.m., included the following two sarcastic statements: I appreciate your close attention to me lately. I wish you started to analyze planning problems since the beginning of the school year, but better late than never. Well, I think you are very brave. I wonder if you are aware of the fact that Code of Civility refers to all OCPS employees, not only teachers. The second, sent 30 minutes later, included the two statements that follow. Referring to Dr. Knight's concerns about whether Ms. Parker was using the "Elements of Literature," Ms. Parker said: It proves again and again your hostile biased attitude. Earlier or later, we all have to pay for what we have done. . . . (Unknown author). Ms. Parker's original explanation that she was paraphrasing a biblical passage and her later explanation that she was quoting Oscar Wilde are neither persuasive nor material. The source of the quote does not alter the fact that the statement and the entire email are discourteous, disrespectful, bullying, and uncooperative. Grievance Meeting On January 20, 2012, Ms. Parker submitted a grievance to the Board's employee relations office. Carianne Reggio, the Equal Employment Opportunity Officer and Equity Officer for the Orange County Schools, investigated the grievance. Ms. Reggio met with Ms. Parker on March 20, 2012, to advise her of the result of the investigation. During the meeting Ms. Parker displayed, as she had in her meetings with Dr. Knight, what the union representative described as confidence "that borders on what we might perceive as arrogance." During the meeting, Ms. Parker gave no indication that she acknowledged that anything she had said or done during the communications and meetings from December 2011 forward was inappropriate or improper. She maintained that same position during her testimony. During the three-hour meeting, Ms. Reggio reviewed her findings of no violations with Ms. Parker and considered Ms. Parker's reactions and complaints. Ms. Parker was very upset. While Ms. Reggio was walking Ms. Parker to the elevator, Ms. Parker said she could see why teachers resort to extreme measures and shoot up school systems. This was a reference to a recent murder/suicide in Jacksonville, Florida, where a teacher shot the headmistress of his school and then killed himself. Ms. Parker did not accompany this statement with any gestures, a display of a weapon, or any more specific statement. The statement was crass, disquieting, and inappropriate. But it was not a threat. On March 6, 2012, the Superintendent of Schools recommended termination of Ms. Parker's contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order finding that there is just cause to terminate Ms. Parker's employment and terminating her professional service contract for just cause pursuant to section 1012.33, Florida Statutes. DONE AND ENTERED this 23rd day of October, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2012.
The Issue The issue here is whether the Superintendent has shown "good and sufficient reasons" for recommending that Mr. Udell be returned to annual contract status as a teacher employed by the School Board of Hamilton County, Florida.
Findings Of Fact For fourteen years, Mr. Udell has been employed by the Hamilton County School Board as a teacher. He is presently assigned as an auto-mechanics instructor at Hamilton High School. He has held a continuing contract for the last seven years. The principal of Hamilton High School has been Mr. Maurice Hammond for the last two years. It appears that he is less indulgent of rule violations than was the former school principal, Mr. William Edwards. Mr. Hammond has cracked down on activities such as student card playing which at one time were tolerated by the former administration. This has been at least a partial cause of friction between the old teachers like Mr. Udell and the new principal. It is the school policy that if a student is absent for more than nine days in a nine-week grading period, he will receive a sixty-five or lower grade for that period. With respect to the grade of Tim Holland, a student of Mr. Udell's for the 1979-1980 school year, Mr. Udell did not follow that policy. The policy was known to him through the teachers' handbook which he received at the beginning at the school year. In Mr. Hammond's opinion, Tim Holland would not have graduated if it has not been for Mr. Udell's violation of the nine-day rule. Tim Holland missed a total of seventy-five days of the 1979-1980 academic year. According to Hamilton High School policy, each student must receive nine grades during each nine-week grading period. Mr. Udell has not complied with that policy. During the last complete school year, his students received on the average only three grades. Hamilton High School students who are seniors and have a class grade average of ninety-five or above are exempt from quarter examinations. During the 1979-1980 year, on at least one occasion, Mr. Udell exempted from quarter exams several senior students who had less that a ninety-five average. The teachers of Hamilton High School compute the grades for their assigned students. In the 1979-1980 year, Mr. Udell had one of his students compute grades for him. The result was numerous computation errors, all in favor of the students. For instance, Leonard Phillips had a seventy-four for the first grading period and an eighty for the second period yet he received an average grade of eighty for the whole semester. Jack Alford received a sixty the first period, a sixty-four for the second period and an average of seventy for the semester. For the first semester of 1979-1980 alone, at least sixteen of Mr. Udell's forty-nine students received incorrect grades. Prior to Mr. Hammond's administration at Hamilton High School, there were occasions when students were allowed to play cards during class periods. On April 2, 1979, during a visit to Mr. Udell's classroom, Mr. Hammond observed numerous students playing cards in the third and fourth periods. Halter in the afternoon when the principal spoke with Mr. Udell about the indent, he responded that card playing occurred in other parts of the campus and "the best thing to do was to give me that oil [needed to operate an engine]." This response is typical of Mr. Udell's attitude when deficiencies in his teaching have been pointed out to him. He attempts to rationalize them by shifting repairability onto others. He explained his grading errors by complaining about not having a student assistant or a planning period; yet, with only three grades per student for the whole year, it would take little time for him to accurately compute the grades himself. In one instance, on January 14, 1980, Mr. Udell left an inadequate lessor plan for a substitute teacher. The plan which was for three classes for two periods stated in its entirety (spelling etc. as on original): 1-14-80 Auto Class 1-2 P. Class Basic Tune-up on six cyl. engine Practice on training unit that is on roll cabinit tools are in top drawer in roll cabinit Check training unit with sun scope This is for all classes one group work on engine one on training unit, then change over. Udell A 30-gallon drum of cleaning solvent was sent to Mr. Udell's auto mechanic shop without a purchase order being first submitted. This is contrary to the purchase procedure established at Hamilton High School. It resulted, however, because the salesman sent the solvent before he had Mr. Udell's approval. Mr. Udell was therefore not at fault for there not being a purchase order prior to the delivery of the goods. Evidence was presented which shows that Mr. Udell adequately handles many of the instructional aspects of his teaching responsibilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board of Hamilton County, Florida, enter a final order pursuant to Section 231.36(4), Florida Statutes, returning Mr. Lawrence Udell to an annual contract of employment as a member of the instructional staff, effective from the beginning of the 1980-1981 school year. DONE AND RECOMMENDED this 7th day of January 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January 1981.
The Issue The issues are whether the proposed change of school attendance boundaries for four middle schools and four high schools (East Side Schools) located in eastern Pasco County (County) is a rule, and, if so, whether the proposed rule is an invalid exercise of delegated legislative authority.
Findings Of Fact The School Board is an educational unit and an agency defined in sections 120.52(1)(a) and (6), Florida Statutes. One of its duties is to assign students to schools after consultation with the Superintendent. See § 1001.41(6), Fla. Stat. The School Board has divided the County into geographic areas for purposes of drawing school attendance boundaries. At issue here is an area that encompasses the East Side Schools, comprised of around 40 designated areas, all east of the Sunshine Parkway or Interstate 75, in which four middle schools and four high schools are located. Petitioners are students or parents who reside in the Country Walk community in area 16. Students in area 16 are currently assigned to Wiregrass Ranch High School (Wiregrass) and Dr. John Long Middle School (John Long). With the exceptions cited below, under the new attendance plan, area 16 students will be reassigned to Thomas E. Weightman Middle School (Weightman) and Wesley Chapel High School (Wesley Chapel) beginning in school year 2017-2018. Only the rezoning for area 16 is being challenged in this case. Sarah Osorio is a student in the fourth grade and is unaffected by the boundary change. Lucas Darby is a student in the first grade and is unaffected by the boundary change. Lyric Hunter is a student in the second grade and is unaffected by the boundary change. Zoe Alyssa Wood is a student in the 11th grade; as a rising senior, she will be allowed to remain in Wiregrass. Katrina Nodine is currently in the fifth grade and is already scheduled to change schools at the end of the school year as a result of her graduation from elementary school. Cameron Darby is currently in the eighth grade and is already scheduled to change schools at the end of the year as a result of his graduation from middle school. The parents of these students are also unaffected by the new plan. The County is experiencing an increase in population caused by "intense" new residential development in the eastern part of the County. As a result, enrollment in most East Side Schools has exceeded capacity. In school year 2016-2017, Wiregrass exceeds capacity by 50.4 percent, while John Long exceeds capacity by 40.6 percent. If no changes are made, the two schools are projected to be operating at approximately 154.2 and 147 percent capacity, respectively, in school year 2017-2018. In contrast, Wesley Chapel and Weightman, while exceeding their permanent capacity, are operating at less capacity than Wiregrass and John Long. The district is expected to open a new combined middle-high school (Cypress Creek) in August 2017, but the student population must still be redistributed to address the capacity issue in Wiregrass and John Long. Because of anticipated growth in the County, and existing disparities in school enrollment, in August 2016, the Superintendent instructed his planning staff to begin the process of developing a plan for amending school attendance boundaries, including the East Side Schools. He further directed that a recommendation be formulated in time for the School Board to approve a new plan before February 1, 2017. This deadline was necessary because by April of each year, the School Board must prepare a proposed budget for the following year; adequate lead time is required to develop a new transportation routing plan; and once new boundary lines are drawn, an open enrollment plan, known as the School Choice program, allows students, between February 1 and March 1 of each year, to apply for enrollment in another school, i.e., in this case their former school. The School Board has adopted a set of Bylaws and Policies, which apply to "Legislative/Policymaking," or rulemaking, and follow the requirements found in chapter 120. See Pet'r Ex. 1. Policy 0131 provides that "the term 'rule' and 'policy' shall have the same definition." Id. at 1. The policy spells out in detail the procedural requirements for adopting policies (rules), which include notice of the proposed policy, a hearing, preparation of a rulemaking record, School Board action, and notices. Id. at 2-3. The policy also describes how a substantially affected person may challenge a proposed policy. Id. at 4. Reference to a "rule" and chapter 120 was made in various announcements, notices, and statements throughout the rezoning process. Even so, the School Board takes the position that its policies and chapter 120 do not govern the redrawing of attendance boundaries. As a consequence, the Superintendent did not review the Bylaws and Policies or chapter 120 before he began the rezoning process. The Superintendent opted to use the same rezoning process used since at least 2005. Under this process, a boundary committee, advisory in nature, is appointed for the purpose of developing multiple boundary maps and then recommending one of them to the Superintendent. The Superintendent does not attend the committee meetings or direct any member to draw a plan in a particular way. He considers, but is not required to accept, the committee recommendation. A parent meeting is also conducted to allow parents to provide input into the process. After the committee and parent meetings are concluded, the committee submits a recommendation to the Superintendent, who then submits a final recommendation to the School Board. By law, two adoption hearings must be conducted by the School Board, which makes the final decision. A boundary committee is comprised of two parents from each affected school, district staff, and principals of affected schools. The committee is intended to represent the interests of students, parents, communities, schools, and the district. The committee for the East Side Schools consisted of 21 members. During the rezoning process, a committee will typically conduct three meetings before making its recommendation. In this case, the Superintendent scheduled a fourth meeting to be held after the parent meeting so that parent input could be considered. In developing new school attendance boundaries, the committee was instructed to follow certain guidelines. Under these guidelines, a new boundary should provide socioeconomic balance, maintain to the extent possible an in-line feeder pattern, provide for future growth and capacity, provide safe and efficient transportation, maintain subdivision integrity, and consider long-term school construction plans. See Pet'r Ex. 11. The committee was also given extensive data including, among other things, existing and projected enrollments for each school for school years 2016-2017 and 2017-2018; five and ten- year projected enrollments for each school; long-term school construction plans; future growth potential in the area; minority, low income, and special education population by area; and total population history for each school. The School Board employs a full-time public information officer who directs and coordinates the dissemination of information to the public. This is accomplished through social media (Twitter, Instagram, and Facebook) and a School Board website accessible by the public. In addition, a special zoning website was established during the rezoning process. The website and social media profiles are identified on the inside front cover of the student planner issued to every student at the beginning of the school year. The district also operates a program known as School Connect, which is capable of sending telephone messages, emails, and text messages to the parents. School Connect was used to make automated telephone calls to the contact telephone number listed on a student's information card informing the parents of the time and date of the parent meeting. See Resp. Ex. 6. All parents with a valid telephone number received a call, although some parents either did not personally answer the call, listen to the recorded message, or remember its substance. School Connect also sent emails and texts to parents, including notification of the plan the Superintendent was going to recommend to the School Board. Signs and notices regarding the rezoning were not posted in the Country Walk neighborhood before any meeting. However, multiple notices were posted on social media and websites, and text messages, emails, and telephone messages were sent to the parents. This constituted substantial compliance with the requirement that notice of rulemaking be "post[ed] in appropriate places so that those particular classes of persons to whom the action is directed may be duly noticed." § 120.81(1)(d)3., Fla. Stat. Besides telephone calls, text messages, emails, and social media, on November 8, 2016, the Superintendent sent a letter to affected parents informing them of the parent meeting on November 29, 2016. See Resp. Ex. 3. The letter noted that attendance boundary lines for East Side Schools would be redrawn to "relieve crowding" at those schools, and it included the new proposed boundary lines being considered, along with reference to a website where more details could be found. Through School Connect, the School Board then sent parents reminder notifications via telephone and email. All Petitioners acknowledged receiving some form of notice of the process during the fall of 2016, and all had actual notice well in advance of the last committee meeting. Some parents attended committee meetings, the parent meeting, or spoke at both School Board meetings. During this same period of time, parents sent emails to the School Board or Superintendent expressing their views on rezoning. On September 6, 2016, the procedures for school rezoning were announced on Facebook and other social media. A press release for various media was issued on September 13, 2016. The press release announced the appointment of the boundary committee and provided the day, time, and location of each committee meeting. The press release was also published on the School Board's Twitter account. On October 3, 2016, an informational video regarding the rezoning process and featuring the Superintendent and district Planning Director was published on the School Board website and Twitter and Facebook accounts. Committee meetings were conducted on September 16, September 29, October 20, and December 2, 2016. These meetings were open to the public, and all were live-streamed on YouTube.com. Except for the last meeting, very few parents attended the meetings. Members of the public who attend the committee meetings are observers only, they do not have input into the meeting process, and they are not allowed to participate in committee discussions. However, there is nothing to prevent an observer from asking a member a question before or after the meeting, or in another setting. Committee members were encouraged to speak to the parents to keep them updated on what was occurring. All documents considered by the committee were posted on the School Board and special zoning websites. Minutes for each meeting, which summarized decisions of the committee and gave notice to parents as to which path the committee was taking, were published before the following meeting. On November 29, 2016, hundreds of parents, including four of the six who testified at hearing, attended a parent meeting. So that parent input would be considered, the Superintendent scheduled a fourth committee meeting on December 2, 2016. Four rezoning plans were considered by the committee, all addressing the overcrowding problem in different ways. On December 2, 2016, by a 16-to-5 vote, the committee recommended approval of Option 20, which did not affect area 16. The plan with the second most votes, Option 13, supported by district staff, reassigned students in area 16 to Wesley Chapel and Weightman. The new schools lie north of Country Walk, but are approximately the same distance from Country Walk as are Wiregrass and John Long, which lie directly south of area 16. The Superintendent chose not to accept the committee's recommended option. Instead, he chose to recommend Option 13 to the School Board for adoption. This decision was reached after consultations with the district Planning Director. The only difference between the two Options is that Option 20 reassigns areas 8, 9, 11, and 12 to Wesley Chapel and Weightman, leaving areas 16, 17, 20, and 21 unchanged, while Option 13 reassigns areas 16, 17, 20, and 21 to the new schools, leaving areas 8, 9, 11, and 12 unchanged. In developing Option 13, the committee and Superintendent followed the guidelines established at the outset of the process. Option 13 takes into account future growth and capacity of the schools. Consideration is also given to providing socioeconomic balance. Subdivision integrity is maintained, in that the entire Country Walk community is assigned to the same schools. During the development of this option, the committee had available the long-term school construction plans of the district. The transportation director was a member of the committee and provided assurance that the new plan provides safe and efficient transportation. Finally, because of overcrowding and anticipated growth in the area, the school feeder pattern structure, which now directs area 16 students to Wiregrass and John Long, was necessarily impacted. On balance, however, the guidelines were observed. Pursuant to other district policies, certain exceptions apply to the new attendance boundary. Students who are rising seniors at Wiregrass are grandfathered and remain at Wiregrass. Students who are approved under the School Choice program to remain in Wiregrass or John Long may do so. To take advantage of this program, a student must give a valid reason, such as hardship, separation of siblings, or participation in certain extracurricular activities. There is, however, no guarantee that a request for School Choice will be approved. Notice of the Superintendent's recommended plan, the School Board agenda, memorandum to the School Board, and map were published on the School Board's website seven days before the first School Board meeting. In addition, the same information was published on the district's Twitter and Facebook accounts, and emails were sent to parents who provided an email address. Finally, the Superintendent published a letter/email on December 12, 2016, explaining his reasons for recommending Option 13. It is fair to say that all parents had actual notice well before the first School Board meeting that area 16 was being reassigned to different schools. On November 20, 2016, a Public Notice (Notice) was published in the Tampa Times advising that a first reading on the new school attendance boundaries would be conducted by the School Board on December 20, 2016, and that final action would be taken at a second meeting on January 17, 2017. See Pet'r Ex. 2. The Notice read in relevant part as follows: PUBLIC NOTICE INTENT TO ADOPT A RULE TO ESTABLISH SCHOOL BOUNDARIES FOR THE 2017-2018 SCHOOL YEAR The District School Board of Pasco County intends to change attendance boundaries for the 2017-2018 school year for the schools listed below: * * * New Middle/High School GGG (Cypress Creek Middle/High), Charles S. Rushe Middle, Dr. John Long Middle, Thomas E. Weightman Middle, Sunlake High, Wesley Chapel High, Wiregrass Ranch High * * * First reading on this matter is scheduled for the regular meeting of the District School Board of Pasco County on December 20, 2016 at 6:00 p.m. in the W. David Mobley Media Center, School Board Room, 7205 Land O' Lakes Blvd., Land O' Lakes, Florida. School Board action on this matter is scheduled for the regular meeting of the District School Board of Pasco County on January 17, 2017 [at the same time and location]. Although all Petitioners stated they did not read the Notice, they nonetheless complain the Notice does not contain a detailed summary of the new boundary lines, a reference to the grant of rulemaking authority, a reference to the statute being implemented, a summary of the estimated regulatory costs, or the other details normally included in agency rulemaking pursuant to section 120.54. There is, however, no evidence that the parents were prejudiced by a lack of more information in the Notice. With the exception of those parents who voluntarily chose not to attend meetings, all other parents who were not working or were not out of town had actual notice and attended the meetings. At both School Board meetings, members of the public were allowed to speak. Normally, one hour of public testimony is permitted for an agenda item, with a three-minute time limitation for each speaker. Because three sets of attendance boundary plans were being considered as a single item, this time was expanded, and each plan was allotted one hour, for a total of three hours. To accommodate the large number of parents wishing to speak (33), only 90 seconds was allotted to each speaker, including those representing groups. Given the time constraints, not every parent was given the opportunity to speak. However, 14 speakers who were not allowed to speak at the first meeting were scheduled to speak first at the second meeting on January 17, 2017. All Petitioners attended at least one of the two School Board meetings. Committee members were not required to attend either School Board meeting to explain Option 13 (or why it was not their first choice) or to answer questions posed by the audience. At this point in the process, the Superintendent, and not the committee, bore the responsibility of making a final recommendation to the School Board and to answer any questions members had. At the close of public comment, the School Board considered and approved Option 13. On January 17, 2017, the day of the second School Board meeting, the Superintendent sent a memorandum to School Board members regarding the rezoning issue. Among other things, he stated that "[t]he establishment of school attendance boundaries is authorized by Section 1001.42, Florida Statutes. In addition, the Administrative Procedures [sic] Act requires that the District publish a Notice of Intent to Adopt a Rule twenty-one days prior to the public hearing. The first reading was held on December 20, 2016." Pet'r Ex. 19. At the beginning of the meeting on January 17, 2017, the Superintendent commented on his recommendation to adopt Option 13. After public comment, by a 4-to-1 vote the School Board adopted Option 13 for the East Side Schools. Unlike typical agency rulemaking, the adopted plan is in the form of a map, rather than a numbered rule. As required by section 120.54(3)(e)6., a copy of the new boundaries was filed with the "office of the agency head" after it was adopted at the second meeting. The cost for parents to transport their children to the new schools is highly speculative, but it should be similar to the current costs, as the new schools are the same distance from Country Walk. There was no evidence to show that the new plan would increase regulatory costs, directly or indirectly, more than $200,000.00 within one year after implementation. See § 120.541(1)(b), Fla. Stat. Therefore, a statement of estimated regulatory costs for implementing the new boundary lines was not prepared by the School Board, and none was requested nor submitted by a third party. The parties agreed that had the students who are named as parties testified at the final hearing, they would have reiterated the allegations set forth in the First Amended Petition. These include allegations that the students will be emotionally affected by the transfer; they will be separated from friends, teachers, counselors, and certain academic and extracurricular programs; and they will be limited in their ability to walk or bike to school. The parents expressed a wide range of concerns with the new attendance boundaries. All wondered why Option 20, which was recommended by the committee, was not accepted by the Superintendent, rather than Option 13. However, in an email dated December 12, 2016, the Superintendent explained that Option 13 provided the least disruption for all students. He pointed out that if Option 20 were adopted, "some students could attend four different schools in their secondary years. They could conceivably start 6th grade at John Long Middle School, move to Weightman Middle School by the 8th grade, start 9th grade at Wesley Chapel High School, and be moved to Cypress Creek High School [a new high school] before graduation." Pet'r Ex. 8. He added that under Option 13, "the projected average daily membership for Wiregrass Ranch High School will decrease after the seniors graduate in 2017. Projected enrollment goes down to 2,124 in 2018 and 1,956 in 2019." Id. The Superintendent further testified that by choosing Option 13, "it kept [him] from having to move portables from Wiregrass Ranch High School to Wesley Chapel High School," and it "accomplished our goal of reducing student enrollment at Wiregrass High School to get us off the 10-period day." Resp. Ex. 28, p. 141. These reasons are sufficient to validate the change in the boundary. Therefore, the undersigned will not engage in an exercise to determine if another Option, or variation thereof, might be better for, or more advantageous to, a particular neighborhood. Although the new schools are the same distance from Country Walk as the current schools, the parents are concerned with traffic conditions on State Road 54 and Meadow Pointe Boulevard, roads they say must be used in order to travel to the new schools. They point out that these roads are far more dangerous than the roads they now use to travel to their current schools, and both roads have had a sharp increase in serious accidents during the last two years. However, the district Transportation Director stated that regardless of the route taken, he had no concerns regarding the district's ability to develop bus routes that result in safe transportation of students to and from their schools. Notably, all major roads in the Country Walk area are currently used by the district for bus transportation and there are no safety concerns regarding their continued use. Several parents expressed a concern that the value of their homes would decline since buyers would not choose to purchase a home in Country Walk if their children were forced to attend Wesley Chapel or Weightman. However, the record gives no indication that any homes have been offered for sale, any homes have been sold at a distressed price, or any homeowners have not been able to sell their homes due to the proposed rezoning. Parents are concerned that the new schools do not have the same clubs, extracurricular activities, or educational opportunities that are found at Wiregrass and John Long. There is no credible evidence that substantially-similar educational opportunities will not be available to students at Wesley Chapel and Weightman. And there is no credible evidence that any student currently involved in a course of study unavailable at the new school will be negatively impacted by curriculum differences.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as observation of the demeanor of the witnesses, the following facts are found: Respondent Kenneth Neil Watts has been employed by the Levy County School Board for ten years. He has continuously been assigned to Yankeetown School where he has taught seventh and eighth grade math, science and physical education. He has been on continuing contract status since 1975. Prior to coming to Yankeetown, he had an additional three years of teaching experience. On August 20, 1981, the first day of school for students, respondent came to school a little late. Harvey Markham, the Principal of Yankeetown School, believed that he smelled alcohol on respondent's breath. He had a conference with respondent and the building representative for the Levy County Educational Association, Barbara Delores Gaitanis, was present at this conference. Mr. Markham accused respondent of being inebriated and respondent denied that he had been drinking any alcoholic beverage: Respondent became very upset from his conversation with Mr. Markham, did not feel that he could go into his classroom in that upset condition and asked if he could be relieved from his duties on that day. Respondent then drove himself home. Nothing was placed in respondent's personnel file concerning this incident. Ms. Gaitanis did not notice any smell of alcohol from the respondent, and did not notice anything unusual about respondent's physical appearance. Mr. Markham believed he smelled alcohol and noted that respondent's face was flushed and his eyes were bloodshot. Respondent was not slurring his speech or staggering. On December 9, 1981, respondent did not report for work. This was the first occasion when respondent had not given prior adequate notice of his absence. The school called respondent's residence, respondent answered the phone and said that he had overslept and would be in later. Respondent's words during that conversation were somewhat slurred. Respondent's wife later called in and reported that respondent would not be in that day. Mr. Markham asked respondent to go to a doctor that day and to bring him a note from the doctor. Respondent did go to a doctor and brought Mr. Markham a paid receipt for the visit. Two students believed they smelled alcohol on respondent's breath on or about December 18, 1981, the last day of school before the Christmas holidays. These students did not notice any change in respondent's physical appearance or behavior on that occasion. Three other students believed they smelled alcohol on respondent's breath on several occasions. They could not recall the dates. On such occasions, respondent showed no difference in behavior or physical appearance. Two teachers who had worked with respondent for ten years and saw him on a daily basis, sometimes in the morning, at lunchtime and again at the end of the school day, never smelled alcohol on respondent's breath. One of these teachers specifically remembered seeing respondent on the last day before the Christmas holidays. Three teachers' aides employed at Yankeetown School for 6, 4 and 2 1/2 years respectively, observed respondent on a daily basis--sometimes three times a day--and never smelled alcohol on respondent's breath. Twelve students who had respondent as a teacher for two or three periods a day on a daily basis during the 1981-82 school year never noticed the odor of alcohol from the respondent. Many of these students had respondent as a teacher during the first and second periods of the day and would have been present both on the day preceding the Christmas holidays and on April 19th, the day of his suspension. On April 19, 1982, Principal Markham's secretary noticed the smell of alcohol on respondent's breath as he was taking roll in his classroom. Mr. Markham called respondent to his office and building representative Gaitanis was again present. Markham accused respondent of being intoxicated, respondent denied that he had been drinking, and Markham then gave respondent the option to take a breathalizer examination. Respondent replied that he would do so if he could do it locally and did not have to travel to Bronson. Bronson is some thirty-five miles from Yankeetown and respondent did not have a car on April 19th. Mr. Markham did not order respondent to take the breathalizer exam. Mr. Markham sent respondent to the teachers' lounge and then asked his secretary to drive respondent home. Ms. Gaitanis noticed no odor of alcohol during the conference between respondent and Mr. Markham. A teacher's aide who saw respondent in the teachers' lounge at about 10:00 a.m. on April 19th and sat three to four feet away from him noticed no odor of alcohol. Mr. Markham admitted that respondent did not slur his speech, stagger or otherwise appear intoxicated in his behavior. He did observe that respondent's eyes were bloodshot and his face was flushed. Mr. Markham's secretary smelled the odor of alcohol while driving respondent home, but did not notice anything peculiar in respondent's behavior or appearance. Respondent does not like and does not drink hard liquor. He sometimes drinks a beer or two on the weekends or in the afternoon or evening after school. Respondent does not drink beer or alcohol at school or in the mornings before school. His eyes are often bloodshot and he occasionally has trouble sleeping at night. On Sunday, April 18th, respondent had been at the beach in the sun all day. Yankeetown is a small town with a population of approximately 500. If a resident had a drinking problem, it is probable that it would be common knowledge throughout the community. There was no testimony from parents, teachers or other community members that they had heard that respondent came to school intoxicated or with alcohol on his breath, or otherwise had a drinking problem. Principal Markham's "Instructional Evaluation" of respondent for the 1981-82 school year was prepared on March 18, 1982. As was true for the previous years' evaluations, respondent received a "Currently Satisfactory," the highest rating available, in all areas under the headings of "Teaching Competencies" and "Personnel and Professional Qualities." The subareas in which respondent was rated included "planning," "teaching techniques," "classroom management," "accurate and punctual in routine duties, records and reports" and "complies with school, county and state policies." Respondent took eleven full days and five half days of sick and personal leave during the 1981-82 school year. Other than the one December 9th occasion, respondent gave adequate notice of his absences. His leave days were always approved and he was paid for each of them. Mr. Markham felt that respondent's absences were a "minor" problem and he would not have recommended termination on this basis alone. He discussed respondent's absences with him on one occasion, but did not place anything in writing in respondent's personnel file. Respondent prepared lesson plans for substitutes to use during his absences and these plans were submitted to Principal Markham. Markham recalled discussing inadequate lesson plans with respondent on one or two occasions, but admitted that he had not previously placed much emphasis on lesson plans. No memoranda were placed in respondent's personnel file concerning lesson plans, and respondent could not recall any discussion with Mr. Markham regarding the adequacy of his lesson plans.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the charges contained in the April 30, 1982, "Recommendation of Dismissal" be DISMISSED, and that respondent be immediately reinstated with back pay from May 7, 1982, the date of his suspension without pay. Respectfully submitted and entered this 30th day of August, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 30th day of August, 1982. COPIES FURNISHED: John D. Carlson, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 C. Anthony Cleveland General Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Francis E. Rowell Superintendent School Board of Levy County, Florida Post Office Box 128 Bronson, Florida 32621-0128
