Findings Of Fact At the time of final hearing the Respondent, Myron Lewis, was the holder of State Certified General Contractor's Licenses as follows: Myron Lewis d/b/a Interior Concepts of Palm Beach, Number CG C005282; Myron Lewis d/b/a Whitten Corporation South, Number CG CA05282; and Myron Lewis d/b/a Custom Pools of the Palm Beaches, Inc. Number CG CB05282. Respondent was engaged in the business of building swimming pools in the Palm Beach area. In connection with that business the Respondent entered into contracts for the construction of pools with several individuals, including the following: James Riley; Michael Belmonti; Walter Beasley; Jose Dorribo; Gerald Gottner; James Overton; and Ronald Malcolm. With regard to the first six names listed above, Respondent had failed to complete the pool and perform according to the contract and, apparently, abandoned the project after accepting a major portion of the contract price agreed upon. With regard to the seventh name listed above, Respondent accepted an initial deposit of $680.00 for construction of a swimming pool but never performed any work and did not return the deposit. Some efforts were made by the Respondent to settle each of the claims against him and to that end there was submitted into evidence general releases from Malcolm, Riley and Belmonti each reciting that the general release was a settlement and compromise of disputed claims and that the payments are not to be construed as admission of liability on the part of Custom Pools of the Palm Beaches, Inc. and/or Myron Lewis. (See Petitioner's Composite Exhibit 3) With regard to the projects set forth in Paragraph 2 above, Respondent apparently terminated because of financial difficulties he and his company were in, none of which was the fault or responsibility of the persons for whom Respondent had contracted to build pools. More than ninety days had elapsed from the time of termination of the project by Respondent and this final hearing. All of these projects occurred prior to 1978. The Palm Beach County Construction Industry Licensing Board, by action taken on January 23, 1978, suspended Respondent's license until further notice. That suspension was the result of the termination of the projects set forth above. The evidence presented indicates that an unspecified amount of money paid Respondent for the construction of specific pools was actually used for other obligations of Respondent and such funds were not used for the prosecution or completion of the project for which they were paid.
The Issue Whether respondent Alfred Hunt, a minor child, should be expelled from the Palm Beach County School System for misconduct and disruptive behavior as a student, including numerous physical assaults on other students. Background On February 2, 1984, Thomas J. Mills, Superintendent of Schools for Palm Beach County, Florida ("petitioner"), filed an administrative Petition for Expulsion seeking the expulsion of respondent Alfred Hunt from the Palm Beach County School System. The petition alleged that the respondent was guilty of violating the Student Conduct Code of the Palm Beach County School System, Section 5.18, arising out of his participation in an unprovoked gang assault upon another student, while on the campus of Carver Middle School. As a result of this incident, the respondent was suspended for a total of 40 days, and was recommended for expulsion by the Principal of Carver Middle School. The Superintendent concurred with the Principal's recommendation and notified Mary Hayes, respondent's mother, that a recommendation for expulsion would be submitted to the School Board of Palm Beach County at its February 1, 1984, public meeting. On January 29, 1984, respondent, Alfred Hunt, requested a hearing on his proposed expulsion. Subsequently, Mary Hayes joined in, and confirmed, her son's request for a hearing. The petitioner called four witnesses and offered ten exhibits, all of which were received in evidence. Respondent Mary Hayes testified on her son's behalf, and offered-no other witnesses or exhibits. Respondent, Alfred Bunt, did not attend the hearing. The transcript of the hearing and proposed findings of fact were filed on May 17, 1984. Based on the evidence presented at hearing, the following facts are determined:
Findings Of Fact Petitioner, Thomas J. Mills, as the Superintendent of Schools of Palm Beach County, Florida, has the authority to recommend to the School Board of Palm Beach County that respondent, Alfred Hunt, be expelled from the school system. Respondent, Alfred Bunt, is an eighth grade student in the Palm Beach County School System and is presently enrolled at Carver Middle School, Delray Beach, Florida. Respondent, Mary Hayes, is the mother of Alfred Hunt. Respondent, Alfred Hunt, has a past history of misconduct and disruptive behavior within the Palm Beach County School System. Specifically, while in attendance at Carver Middle School during the past year, he was disciplined for various offenses, including attacks on other students: DATE OFFENSE DISPOSITION 5/17/83 Using obscene and vulgar suspended 3 days language 5/24/83 Fighting suspended 5 days 8/17/83 Hitting, pushing, and suspended 10 days 9/13/83 chasing another student with an iron pole Constantly humming in paddled 9/16/83 class Constantly picking on paddled 9/19/83 another student Hitting another student suspended 3 days 9/27/83 9/27/83 Continual disruption of class Disrupting class suspended unknown 3 days 9/27/83 Disruption of class suspended 3 days 10/5/83 Punching another student suspended 5 days 10/13/83 10/17/83 Continual disruption of class Continual disruption of conference with student suspended 10 days class 11/3/83 Fighting suspended 3 days 11/17/83 Disrupting class paddled 11/18/83 Pushing another student paddled 12/1/83 Unprovoked attack upon suspended 10 days another student Kelly Brown, the Principal of Carver Middle School, and school counselors, tried to bring about changes in his behavior. He received special student counseling, in addition to disciplinary measures such as in-school suspensions, suspensions, and corporal punishment. For the past two years, he has been placed in Carver Middle School's Alternative Learning Lab, which provides special counseling and smaller classes for disruptive students. Despite these remedial actions, he continues to exhibit disruptive and violent behavior. All reasonable alternative measures to control or correct his behavior have been explored and exhausted by school officials. On December 2, 1983, he committed three separate acts of violence upon students at Carver Middle School. The first incident occurred at approximately 10:45 A.M. during change of classes when he, along with other students, participated in a gang-type assault upon Robert Fortner, another student. As a result of that incident, Alfred was notified that he was suspended from attending class A for 10 days. Later that day, Alfred assaulted Jay Winkler, another student, by striking him in the mouth--causing bleeding. While Principal Brown was investigating the Winkler incident, Alfred, together with several other students, assaulted Robert Fortner, another student, on the school gym field. As a result of this last assault, Principal Brown recommended that Alfred receive an additional 30-day suspension; Alfred waived his right to a hearing to contest the suspension. Because of Alfred's history of disciplinary infractions culminating in the three assaults which occurred on December 2, 1983, Mr. Brown recommended that he be permanently expelled from the Palm Beach County School System. The Superintendent of Schools subsequently concurred. Alfred's continued presence within the school system presents a threat to the safety of his fellow students and interferes with the educational process.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Alfred Hunt be expelled from the Palm Beach County School System for a period not to exceed the 1984-85 school year. DONE and ENTERED this 18th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1984. COPIES FURNISHED: JulieAnn Rico, Esquire 3323 Belvedere Road Building 503-Room 232 West Palm Beach, Florida 33402 Mary Frances Hayes 905 S.W. 11th Terrace Delray Beach, Florida 33444 Ralph D. Turlington Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Thomas J. Mills, Superintendent of Schools for Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402
The Issue The issue is whether Respondent, Debra Turnbull’s (“Ms. Turnbull” or “Respondent”), employment with Petitioner, Palm Beach County School Board (“School Board” or “Petitioner”), as an elementary teacher, should be terminated, based upon the statements of the nature of the controversy set forth in the Joint Second Amended Pre-hearing Stipulation filed by the parties.
Findings Of Fact The School Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, Petitioner has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent is an experienced teacher who has been trained in the proper method of interacting with co-workers and students, exercising best professional judgment, and following rules, policies, and directives. At all times relevant, Respondent was employed with Petitioner as a teacher at Forest Hill and had been assigned there for approximately two years, initially serving as a second-grade, dual language teacher. At all times relevant, Respondent’s employment was governed by the CBA between the District and the Classroom Teachers Association, School Board policies, and Florida law. Respondent was notified, by a Notice of Recommendation for Termination of Employment, dated and acknowledged by her on October 29, 2019, that she was being recommended for a 15-day suspension and subsequent termination due to: (1) Failure to Exercise Best Professional Judgment; (2) Gross Insubordination; and (3) Continued Failure to Follow Policy/Rule or Directive, when she screamed and yelled at her students. An Administrative Complaint, detailing the charges, was served on Respondent, through her attorney, on December 9, 2019. A few months after being assigned to the dual language class, Respondent was moved to a position in the Forest Hill computer lab, which was part of the fine arts rotation for students. As a media specialist, Ms. Turnbull was responsible for checking library books in and out; helping children find books; reading aloud with children; helping students with independent reading; developing lessons to encourage the students to interact with media other than books; and working in a partnership with the home room teachers to support them in special projects and research. The students’ homeroom teacher is not present during the media center visit by that teacher’s students, and routinely drops the students off at the beginning of the 30-minute time block, returning to pick them up at the conclusion of the visit. On or about April 12, 2019, Ms. Turnbull was working on a project with third and fourth-grade classes. She had been given broad discretion in developing a project for the third and fourth graders to celebrate the Everglades. The project was designed to have the children investigate and do research on various aspects of the Everglades, then produce a project to demonstrate what was learned. Ms. Turnbull decided to have each child do some individual research on a topic related to the Everglades, followed by their presenting their findings in a form with which they were comfortable. She gathered numerous books about the Everglades, a video or a DVD to play about the Everglades, and expected that the project would ultimately end up in an Everglades museum that would be displayed in the media center for the rest of the school’s students to visit and learn about the Everglades. She imposed a deadline on the students to have the project completed within three class sessions. In administering the Everglades project, Ms. Turnbull’s intent was that all of the children would research a topic in which they had a true interest. She gave an initial class in how to research and suggested some ideas for project topics. She and the students of each class brainstormed a list of approximately 15 topics that interested the children, which were placed on the board for all the children to see. Ms. Turnbull explained to the students that she would go around the room, so that each student could select the topic on which he or she would like to work, but that no more than four students in each class could work on a single topic, in order to enhance the learning experience for all by having more topics covered. Ms. Turnbull tallied the number of students who selected each topic, and, once a topic was chosen by four students, subsequent choosing students were redirected and limited to the other topics, which were ample for the class sizes. Once the topics were selected and assigned, the classes brainstormed different types of project presentations which could be used. Students were able to produce a diorama, an advertising poster, a research report, or other methods of presenting their projects. Ms. Turnbull used the same rule, that once four students selected a particular method of presentation, that mode would be closed. Similar to the selection of topics, Ms. Turnbull tallied the number of students who selected each presentation method, and, once a mode was chosen by four students, subsequent choosing students were redirected to other choices. On April 12, 2019, Ms. Turnbull met with the students from Ms. Goodson’s third-grade homeroom class, who were dropped off at the media center for their second project session. As they arrived, Ms. Turnbull directed the students to sit at the media center tables, where she had a whiteboard set up, and she and the students began to interact and list the various Everglades topics which interested them. On that day, the students had recently returned from spring break. Ms. Turnbull explained that all teachers know that, after spring break, students are looking towards the end of the school year and are not always focused. She felt that, as sometimes happens, “they were just not with me that day.” They were somewhat uncooperative and talking to each other, rather than listening to what she was saying. Ms. Turnbull had never had a particular problem with that class. It was one of the classes that she looked forward to seeing because they “had a good time together and got things accomplished.” However, on that day, the students were not following the directions she was giving them with respect to choosing the topic for their projects and then choosing their mode of presentation for the topic. Ms. Turnbull gave Ms. Goodson’s students specific directions that no more than four people could choose the same project and that, once there were four students who had selected a particular topic or project, that topic or project was no longer in play, and the next students who chose had to select something else. The students were not paying attention, and, when somebody tried to be the fifth or sixth person to choose the same topic, Ms. Turnbull would again tell the selecting student that there could be no more than four in a grouping and pointed to the board where the students could see four tally marks next to that topic. She would explain that the topic had closed and that something else had to be chosen. Soon thereafter, it would happen again with another student. When she had gone through the entire class, and when the tally marks were totaled, the numbers did not match, meaning that some students had not even made their selections. Gregory York, the IT person assigned to Forest Hill since 2004 or 2005, is responsible for fixing all technical problems at the school. Mr. York testified that he was in the media center on April 12, 2019, to discuss a repair issue with Respondent when he heard her yelling and screaming at a student who had raised her hand. Mr. York further testified that he and Ms. Turnbull “got into a little shouting match as well [when he explained why he could not fix her VCR], so [he] just left.” He described Respondent’s tone of voice as a “very high-pitched tone. Aggravated. … Loud and upset.” He specifically recalled a particular incident with one student as follows: But the one that I kind of recall was with that one particular student when direction was given to raise their hand and when she raised the hand, I guess the answer wasn’t good enough and it just got … it wasn’t just -- I don’t know, I don’t know what word to use, but it was just … I just felt like the student was just following directions and it seemed like she just got in trouble for following directions, from me, that’s all I’m saying. Mr. York admitted, on cross-examination, that “at the beginning, I don’t recall the whole conversation because I was too focusing [sic] with the IT person and then as I -- as we -- as I settled down, that’s when I can pretty much hear -- not hear, but I can see the environment and the tone has changed and that’s what I remember.” He did not remember what was being said when he claimed that the tone changed. Mr. York also remembered, on April 12, 2019, that a student raised her hand to ask a question. He did not recall the entire conversation, but said “it was like an upset conversation and everything and the student just wanted to ask the question and couldn’t answer it or whatever... it was just... just the whole ordeal was just loud.” Mr. York said that, after getting yelled at, “to me for following directions, she did not see -- she seemed a little hurt about it or whatever.” He claimed to “just remember the incident with the one student in particular, with the student raising their hand and, you know, she was just... It was an incident of her yelling at the kid and, you know, the kid got sad and everything like that.” Although he did not recall in any detail what was said or being done, Mr. York claimed “I just felt like the student was just following directions and it seemed like she just got in trouble for following directions from me, that’s all I’m saying.” He did not know why the student raised her hand or what she said. On cross-examination, Mr. York admitted that the hand raising “had something to do with voting, and, like I said, I heard that part and I remember the student just following direction, raising their hand and -- ... raising their hand to speak or maybe vote. I remember that part, the students raised their hand and she asked the student go ahead. And when she said what she had to say, it just went bad after that.” He repeated that he was within ten feet of Ms. Turnbull when this exchange took place, but did not recall whether Ms. Turnbull was explaining that there were already too many students who had made the particular selection. Also on cross-examination, after having his memory refreshed with his prior written statement and deposition testimony, Mr. York admitted that while he did not recall what Ms. Turnbull was “yelling” at the kids, he recalled her yelling or screaming at Assistant Principal Higgins about books. Ms. Turnbull testified that she was not yelling at the children. She admitted that the situation was getting a bit annoying and that, as time went by, and the same situation kept occurring over and over, she became what she termed, “a little bit more stern.” On cross-examination, Ms. Turnbull conceded that she has a loud voice and that sometimes people misinterpret a loud voice or enthusiasm as raising her voice. She explained that she was “a New Yorker,” having a style and expressing herself in a way that some consider “loud, animated, excited and boisterous.” Because the media center door is kept locked, teachers returning for their students typically knock on the door. Ms. Goodson did not knock on the door, but was somehow let into the media center, although she did not immediately ask for her students to leave the media center while Ms. Turnbull continued to work with them. Ms. Turnbull could not recall how long Ms. Goodson observed her students in the media center. Ms. Goodson recalled and estimated being in the media center for about 30 minutes. Ms. Goodson waited in the media center as Ms. Turnbull continued beyond the allotted class time with her students. Eventually, Ms. Goodson indicated that she had to return to her classroom with her students. There was a brief discussion between Ms. Turnbull and Ms. Goodson as the class was leaving. Ms. Turnbull asked Ms. Goodson if she would spend time in her classroom having the students choose topics and methods of presentation, as she had observed that those matters were not completed in the media center that day. Ms. Goodson, she testified, responded that “they are a low class.” Ms. Turnbull assumed Ms. Goodson was referring to academic ability, and responded that, even if they are low, this was not an academic exercise, but was rather a situation of making a choice and following directions. Neither teacher was yelling; instead, they were speaking quietly, because the children were in close proximity to them. Ms. Goodson had never discussed her students’ academic level with Ms. Turnbull until that day. Ms. Turnbull never thought of the class as a “low class.” She would have approached the lesson differently had Ms. Goodson advised that she believed her class was incapable of following two-step or three-step directions. Ms. Turnbull felt that Ms. Goodson spoke about her students as a “low class” in an effort to explain or excuse their behavior that day. When asked about the allegation that she yelled at Mr. Higgins when he was in the media center while Ms. Goodson and her class were present that same day, Ms. Turnbull testified that, since he was an assistant principal, she considered Mr. Higgins to be her boss. She would never yell at him, she testified. Ms. Turnbull felt that Mr. Higgins was someone to whom she could talk, and had she thought that he did something wrong with a book, she would have spoken with him. She did not recall any interaction with Mr. Higgins that day, or even that Mr. Higgins was in the room. In her deposition testimony, Ms. Goodson recalled that, at some point, Mr. Higgins was in the media center. She recalled Ms. Turnbull “went off for a couple minutes on him, saying next time do this, this and this. That’s not how we do it here, something like that.” Mr. Higgins testified during Ms. Turnbull’s case. He knows Ms. Turnbull and was familiar with this case. Mr. Higgins was aware that he had been identified as having been present in the media center during the alleged incident of April 12, 2019. He testified that he did not recall any incident that took place with Ms. Turnbull. He provided a statement during the investigation at a time shortly after the alleged incident wherein he stated that he did not hear anything from Ms. Turnbull on that date. He recalled being asked by Mr. York to assist with repairing the VCR. Mr. Higgins testified that Ms. Turnbull did not yell at him. Mr. Higgins said that he was not the type of person who would accept being yelled at without taking some action since he is the assistant principal and Ms. Turnbull is a media specialist. Mr. Higgins testified that he “returned the book, kind of finished the tech issue with work and walked out.” Mr. Higgins did not witness any yelling, screaming, or anything like that. Similarly, Ms. Turnbull did not recall any interaction with Mr. York on that day, although she recalled that some time before that day she had asked Mr. York to remove a cassette that had gotten stuck in her VCR. She conceded that, although she did not recall him being there, he could have been in the media center on that date. Ms. Turnbull recalled the student Mr. York mentioned in his testimony, although she did not recall her name. The student had a physical exceptionality and used an assistive device to walk. Ms. Turnbull was not aware of the student having any intellectual exceptionality. Like Mr. York, she did not observe the student crying at any point, and testified that she did not observe her upset or with a quivering lip. Ms. Turnbull did not intend to disparage or embarrass the student. Scott McNichols is the principal at Forest Hill. He testified that homeroom teacher Ms. Goodson reported an incident with Ms. Turnbull. Mr. McNichols had Ms. Goodson complete a witness statement. When Ms. Goodson provided the statement, Mr. McNichols contacted the school district labor relations department. Mr. McNichols spoke to no other witnesses about the matter. In general, classes at Forest Hill were heterogeneous with all different kinds of students mixed together. Ms. Goodson’s class was not an exceptional student education (“ESE”) class. She had some students with Individual Education Plans “(IEPs”), and some without. The level of the students in Ms. Goodson’s class was not advertised to the public. A teacher on the art wheel would only know whether Ms. Goodson’s class had ESE students if the ESE contact informed her. Mr. McNichols had no way to know whether the ESE contact informed a teacher as to the existence and nature of a student’s IEP. Ms. Turnbull specifically testified that the ESE contact never informed her of such matters concerning Ms. Goodson’s class. Ms. Vicki Evans-Paré is the director of Employment and Labor Relations for the District. She has held that position for a little over two years and is responsible for handling the CBA and employee discipline, along with other duties. With regard to employee discipline, it is her office that investigates and maintains discipline files. After consultation with the Superintendent regarding his decision as to employee discipline, her office is responsible for drafting the notice of recommendation to the employee that the Superintendent signs. With regard to Respondent’s case, Ms. Evans-Paré testified that she is familiar with Ms. Turnbull’s discipline file. As a records custodian for Petitioner, she provided clear and uncontroverted testimony with regard to the CBA’s provisions for progressive discipline and skipping steps when there is either an immediate danger to the health, safety, and welfare of students or district and/or a flagrant and purposeful violation of the rules. As the director, she makes recommendations regarding discipline to the Superintendent, and she found that Ms. Turnbull had a history of making inappropriate comments to students and acting inappropriately and had previously been given warnings and reprimands; such that, skipping steps, to suspension, was warranted given that prior discipline was not having an effect at all on Respondent’s behavior. Ms. Evans-Paré further testified as to the past practice under the CBA relating to the use of a verbal reprimand with written notation relative to notice of previously given directives. The CBA refers to the personnel file in Article II, Section B, under Rights and Responsibilities. In that provision, it states that “no item can be used to the detriment of an employee unless it is a part of his/her personnel file.” The two verbal reprimands that were offered into evidence were not being offered for progressive discipline purposes, but as allowed under Article II, Section M - Discipline of Employees, as follows: 5. Only previous disciplinary actions which are a part of the employee’s personnel file or which are a matter of record as provided in paragraph #7 below may be cited. * * * Except in cases which clearly constitute a real and immediate danger to the District, a District employee, and/or a child/children or the actions/inactions of the employee clearly constitute flagrant or purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand with a Written Notation - Such written notation shall not be placed in the employee’s personnel file maintained at the District headquarters, but will be placed in a file at the school/department and shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which led to the notation. The written notification shall be maintained at the school site/department pursuant to the District’s Records Retention Schedule. Under the discipline section, the verbal reprimands are certainly a matter of record that is permitted to be cited to, and the phrase “to the detriment of the employee” that is in the section regarding the personnel file, was not included. The terms in the CBA regarding the verbal reprimand and personnel file are not ambiguous. Therefore, they must be given their ordinary meaning. Rivercrest Cmty. Ass’n, Inc. v. Am. Homes 4 Rent Props. One, LLC, 298 So. 3d 106, 111 (Fla. 2d DCA 2020). Respondent acknowledged that she was trained in the Code of Ethics and that she had received previous directives regarding appropriate interaction with students, failure to exercise best professional judgment, and insubordination. She further acknowledged that she had received the allegations against her in the pre-determination notice and packet. Respondent has a prior disciplinary history. Respondent received a Written Reprimand on or about February 24, 2004, while working at Addison Mizner Elementary School, for “actions that violated the Code of Ethics, Sections 2(a) and (e).” At the time, Respondent inappropriately addressed five students (three ESE students, one “504” student, and a “regular” education student) when she “withheld the Valentine’s Day classroom party” for “talking,” for “forgetting materials,” and for “being off task.” Respondent received a Written Reprimand on or about June 5, 2014, from the Office of Professional Standards at the District for violations of School Board policies: 5.002, Prohibition of Bullying and Harassment; 3.02, Code of Ethics; 3.01, Commitment to the Student, Principle I; and 1.013, Responsibilities of School District Personnel and Staff; as well as Florida Administrative Code Rules 6A-10.080, Code of Ethics for the Education Profession in Florida, and 6A-10.081, Principles of Professional Conduct for the Education Profession in Florida. At the time, Respondent “allowed the students to publicly assess their peers, deciding which students were creating a distraction, and which students were ‘hard-working.’” Respondent also “segregated’’ the students by sitting the “distracting” students in the back and also disparaging a student in front of the class ‘‘by suggesting that he should have learned certain skills when he was in kindergarten.” Respondent received a Written Reprimand on or about May 21, 2018, from the Office of Professional Standards at the District for “[failing] to exercise [her] best professional judgment, ethical misconduct, inappropriate interaction with students, and for failure to follow policy, rule, or directive.” At the time, Ms. Turnbull said “shut up” and “stupid” during work hours, and the students said they perceived it as being directed at them. Later on, during the Pre-Determination Meeting (PDM), Ms. Turnbull stated, “The District can go to hell,” while school administration recalled her saying “You go to hell.” Respondent received a Verbal Reprimand (Written Notation) on or about April 17, 2019, while working at Forest Hill, for her unprofessional conduct towards employees during duty hours and for failing to exercise her best professional judgment. At the time, an employee borrowed a Sharpie from Ms. Turnbull’s desk. Respondent reacted by addressing the employee “in a rude and confrontational manner” in the presence of “students and volunteers.” Later, Respondent “went after [the employee] again, continued berating her (disrespecting the personal space between both of [them]), and even mocked her.” The District’s process for determining the discipline to be imposed on Ms. Turnbull in this matter went through Ms. Evans-Paré, the director of Employee and Labor Relations for the District. She testified about the practices of her department and that Ms. Turnbull had received letters and notices of hearing, reassignments within the District, and a copy of the investigative report, which was prepared by another individual, who did not testify in the case. Ms. Evans-Paré testified that progressive discipline begins with a Verbal Reprimand with Written Notation for teachers. It then goes to Written Reprimand, suspension of any number of days, and then to termination. She believes that the employer can “jump steps” and that the CBA permitted that practice when there was “a real and immediate danger to the District, to students, to faculty, to adults, and then also if it’s a flagrant and purposeful violation of the rules.” She explained that steps were skipped in this case because of the nature of the allegation. Additionally, that it was a flagrant and purposeful violation. This is something that has been going on for years with making inappropriate comments to students, acting inappropriately. So[,] at a certain point you just move forward and progressive discipline, you can jump steps because the warnings, the other reprimands, they weren’t having any effect at all. And it was continually doing harm to students. Ms. Evans-Paré testified that the purpose of progressive discipline, and all the notices referenced in her testimony, is to ensure that the employee be told that an action is wrong and that the employee is not to repeat it, and to provide the opportunity to adjust his or her behavior accordingly. She admitted that its purpose was to give a person the opportunity to be advised that particular conduct was wrong and, therefore, be able to avoid it in the future. In her testimony, Ms. Evans-Paré stated that the recommendation of District administrators that went to the School Board in this case was for termination. She recommended termination, based on the fact that statements made by Respondent were to disabled ESE students, and what she termed the number of statements calling them “stupid” and “slow.” Ms. Evans-Paré claimed that Ms. Turnbull “did them over and over. Enough is enough.” Notwithstanding that testimony, Ms. Evans-Paré testified that only the School Board can suspend a teacher without pay. On cross-examination, she made it clear that pursuant to Florida Statutes, the ultimate decision maker concerning employee discipline, even beyond herself, is the Superintendent, and then, beyond him, the School Board. She did not testify as to any formal action taken by the School Board in this case and did not reference or provide any document which set forth any action by the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding that “just cause” exists to discipline Ms. Turnbull, by upholding her prior suspension, without pay, for 15-days, and restoring all benefits and back pay that have been lost/withheld since November 21, 2019. DONE AND ENTERED this 7th day of July, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2021. Jean Marie Middleton, Esquire V. Danielle Williams, Esquire School District of Palm Beach County Office of the General Counsel 3300 Forest Hill Boulevard, Suite C-331 West Palm Beach, Florida 33406-5869 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Donald E. Fennoy, II, Ed.D., Superintendent School District of Palm Beach County 3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594
The Issue The issue presented for decision herein is whether or not Respondent, Walter Pressley, should be expelled as a student from the Palm Beach County Public School System.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Walter Pressley, whose date of birth is August 6, 1970, was enrolled as a ninth grader at Lake Worth High School during the 1985-86 school year. On February 12, 1986, Respondent Pressley was suspended from Lake Worth Community High School for violation of Student Conduct Code 5.18 possession and selling drugs on campus. During January, 1986, Officer Jay Spencer was assigned by Lieutenant Ericson as an undercover officer and he (Spencer) was enrolled as a twelfth grade student for the Lake Worth Police Department at Lake Worth High School. On Monday, January 27, 1986, at approximately 11:40 a.m., Officer Spencer asked Respondent if he knew where he could get some "sensebud" (street name for a particular kind of marijuana). Respondent advised Officer Spencer that he did not have any on his person, but offered to take him to someone who did. Officer Spencer and Respondent attempted to locate the other student who supposedly had the sensebud but he could not be found. The time was drawing near for Officer Spencer's fifth period class to begin and he told Respondent that if he found any sensebud that he would be in his fifth period class whereupon Respondent asked him where was his fifth period class. Approximately fifteen minutes later, Respondent appeared at Officer Spencer's class and beckoned for him to come outside into the hallway. Once out in the hallway, Respondent told him that he had some sensebud. Officer Spencer and Respondent went to a bathroom located on the second floor of the south building at the school and Respondent presented a clear sandwich bag containing suspected marijuana. Officer Spencer conducted a field test of the substance which tested positive for the drug marijuana. Respondent told Officer Spencer that "he could have it for free" inasmuch as he was just establishing a business and he wanted to form a good reputation among other students and build a clientele. Officer Spencer refused to accept the suspected marijuana without payment and asked Respondent if $2.00 would cover it. Respondent agreed and Officer Spencer gave him $2.00 in U.S. currency in return for the marijuana. Officer Spencer then left the Lake Worth High School campus and returned to his home with the suspected marijuana. Once at home, Officer Spencer tested the suspected marijuana for the presence of Delta 9-THC with the Duguenois Reagent Test. After testing the suspected marijuana, it was positive for the presence of Delta 9-THC. At approximately 8:00, Officer Spencer met with Lieutenant Ericson at the Lake Worth Police Department and gave him the suspected marijuana which was thereafter placed into the evidence locker. On February 12, 1986, at approximately 9:00 a.m., Officer Spencer and Lieutenant Ericson arrested Respondent at the Lake Worth High School for the sale of 1.25 grams of marijuana. After Respondent was arrested, he was taken to the Lake Worth Police Department for processing and thereafter transported to the Division of Youth Services (DYS). Respondent was found guilty on March 25, in juvenile court, on a charge of sale and possession of a controlled substance; was placed on probation and given 50 hours of community service. (Petitioner's Exhibit 5). Richard Cahill is a guidance counselor at Lake Worth Community High School. Counselor Cahill reviewed Respondent's achievement record and noted that Respondent performed satisfactorily during his eighth grade, passing all of his classes (during the eighth grade) except math. During his first semester of ninth grade, Respondent again passed all of his classes except math. However, during the second semester, he only passed one subject and in all of his remaining classes Respondent earned F's and one incomplete grade. Once Respondent was enrolled in tenth grade, he commenced compiling a record of excessive absences and he was counseled by Counselor Cahill. Counselor Cahill spoke to Respondent's teachers who related that Respondent expended some effort during the first nine weeks of tenth grade, however, during the second semester, Respondent put forth very little effort and began to be disruptive in class. On November 1, 1983, Respondent was suspended for two days for using abusive language. On February 21, 1984, Respondent was suspended for three days for chronic tardiness. On March 27, 1984, Respondent was suspended for three days for excessively reporting tardy to class. On March 7, 1985, Respondent was suspended for seven days for being an accomplice to a robbery of another student. Finally, Respondent was initially suspended on February 12, 1986 based on the instant charge of possession and selling drugs on the campus of Lake Worth Community High School. (Petitioner's Exhibit 1). David Cantley is the principal at Lake Worth. Principal Cantley provides all students at Lake Worth with a copy of the student handbook at the beginning of each school year. Petitioner goes to great pains to advise students of the ill-effects resulting from the usage of drugs. The student handbook contains Petitioner's disciplinary procedures for the possession or sale of mood altering drugs. Petitioner considers the possession and/or selling of drugs on campus to be a serious infraction of the code of student conduct. (Student Code of Conduct, Section 5.18). Students found guilty of either possession, use or sale of drugs on campus are subject to disciplinary measures including expulsion. (Page 66, Student Handbook). Rich Mooney, an intake counselor for Youth and Family Services, Department of Health and Rehabilitative Services, has been involved in assisting the Respondent since March of 1985 when Respondent was charged with being an accessory to the robbery of another student at Lake Worth Community High School. Since the more recent charge of the sale and possession of marijuana while on the campus of Lake Worth Community High School, Counselor Mooney has enrolled Respondent at the Tri-Center Training and Rehabilitation Day Program (Tri- Center) which is a rehabilitation program operating Monday through Friday during the hours of 8:00 a.m. to 4:00 p.m. under the auspices of Petitioner's Alternative School System. Respondent has been enrolled at Tri-Center since he was recommended for suspension on February 12, 1986. During the first week of Respondent's enrollment at Tri-Center, he presented a few problems adjusting to the structured environment at Tri-Center, however, he is conforming and Counselor Mooney has expressed his opinion that Respondent should do well during the remainder of his enrollment at Tri-Center. Respondent's mother, Mrs. Ryna Pressley, has diligently tried to curb Respondent's disruptive conduct since he has been enrolled at Lake Worth Community High School. Her efforts appear to have failed based on the numerous suspensions of Respondent from Lake Worth commencing in November, 1983 through February, 1986.
Conclusions The School Board of Palm Beach County, Florida, has jurisdiction of the subject matter and the parties thereto. The School Board of Palm Beach County, Florida, has reviewed and adopts the Hearing Officer's conclusions of law, Section 120.57(1)(b)(9), Florida Statutes, and also adopts the recommendation for expulsion but only in conformance with School Board Policy, D-5.241 (3) which states: "Expulsion prevents a student from enrolling in any school programs offered by the school system for the effective date of the expulsion." and rejects the Hearing Officer's suggestion that an alternative program be provided during expulsion. This Order may be appealed within thirty days by filing a notice of appeal with the district court of appeal. Except in cases of indigency, the court will require a filing fee and payment for preparing the record on appeal. For further explanation of the right to appeal, refer to Section 120.63, Florida Statutes (1985), and the Florida Rules of Appellate Procedure. ORDERED AND ADJUDGED that the Respondent, Walter Pressley, is hereby expelled effective this date, from attendance from all programs of the Palm Beach County School System through the end of the 1986/87 school year. DONE AND ORDERED this 23rd day of July 1936. Louis J. Eassa Chairman School Board of Palm Beach County (SEAL) Filed with the Clerk of, the School Board this 23rd day of July, 1986. Clerk
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be expelled from the regular program at Petitioners School Board of Palm Beach County and that he be provided an education in Petitioner's alternative educational program in an appropriate school setting such as the Tri-Center Training and Rehabilitation Day Program. Recommended this 11th day of June, 1986, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1986. COPIES FURNISHED: Bernard Shulman, Esquire School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 Mrs. Ryna Pressley 2073 N.W. Second Street Boynton Beach, Florida 33435 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner General Counsel Knott Building Tallahassee, Florida 32301 Thomas J. Mills Superintendent of Schools School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402 =================================================================
Findings Of Fact Respondent holds Florida teaching certificate number 380391, Post Graduate, Rank II, valid through June 30, 1986, covering the areas of math and junior college. Respondent was employed in the public schools of Palm Beach County as a math teacher at Lake Shore Middle School for the 1979-1980 school year. During the first few weeks of school, Respondent summoned her students into the classroom by shouting an obscenity at them and staged a funeral ceremony for a dead rat in her math class. Students reported these incidents to the principal and to the assistant principal for administration at Lake Shore Middle School. Respondent told another teacher in her carpool that she had found herself in the emergency room of a hospital and did not know how she had gotten there or why she was there. She further admitted being under the care of a psychiatrist. On October 12, 1979, Respondent was seen outside chasing students in an attempt to get them into her classroom, including students that did not belong there. Later, Assistant Principal Davis took Respondent out of her classroom and sent her to the teachers' lounge since she was unable to maintain control over her students in the classroom. Respondent later became subject to alternating outbursts of laughing and crying, without apparent reason. Respondent was driven home by the members of her carpool. Respondent did not return to Lake Shore Middle School. She was absent without leave from October 13, 1979, until her written resignation was accepted by the Palm Beach County School Board on December 3, 1979. On June 18, 1979, Respondent was arrested for possession of marijuana. She elected to participate in the Palm Beach County Pre-Trial Intervention Program. On November 8, 1979, Respondent was again arrested for possession of marijuana. Respondent was not prosecuted pursuant to the first arrest because of her participation and completion of the Pre-Trial Intervention Program. The record in this cause contains no evidence as to the disposition of Respondent's second arrest. The Petition for the Revocation of Teacher's Certificate dated July 29, 1980, was mailed by certified mail to Respondent at her last-known address. This and all subsequent mailings to her at her last-known address were returned marked "Unclaimed." Notice of Action was published in The Post, a Palm Beach County newspaper. Respondent's present whereabouts is unknown to each of the Petitioner's witnesses.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered revoking the teaching certificate of Henrietta Forbes, certificate number 380391. RECOMMENDED this 16th day of April, 1982, in Tallahassee, Florida. LINDA M. RIGOT 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 16th day of April, 1982. COPIES FURNISHED: Thomas F. Woods, Esquire Woods, Johnston, Carlson & Sanford 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Ms. Henrietta Forbes 1812 "B" Road Loxahatchee, Florida 33470
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. Filed January 21, 2011 10:24 AM Division of Administrative Hearings DCA Order No. DCA11-GM-007
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies haye been furnished by U.S. Mail or Electronic May to each of the persons listed below on this day of January, 2011. / a Paula Ford Agency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Amy Taylor Petrick, Esquire Assistant County Attorney Palm Beach County 300 North Dixie Highway, Suite 359 West Palm Beach, Florida 33401 Gary K. Hunter, Esquire Vinette D. Godelia, Esquire Hopping Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 33301 Richard Grosso, Esquire Robert N. Hartsell, Esquire Everglades Law Center, Inc. Shepard Broad Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 DCA Order No. DCA11-GM-007
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Palm Beach County is located in Florida Health Service Area Region VII (HSA #7) which also includes Indian River, Martin, Okeechobee, and St. Lucie Counties. The Health Systems Plan (HSP) for Region VII breaks down bed need for Palm Beach County separately from the other four counties. The population of the southern portion of Palm Beach County is growing at a much faster rate than the population of the northern portion of the County. There is a maldistribution of hospital beds between the northern and southern portions of the County. The northern portion of the County has three times as many hospital beds as the southern portion of the County. Palm Beach County presently has 2,752 hospital beds which are either licensed or approved for construction. This figure includes a new 160-bed NME facility in Delray Beach projected to open in the Fall of 1982, a 50-bed expansion at Bethesda Memorial Hospital completed in January of 1982, a 50-bed expansion at Boca Raton Community Hospital and a 48-bed expansion at John F. Kennedy Hospital presently under construction. An additional 80 beds have been approved by HRS for the new Delray facility, but this is presently in litigation and these beds can not be considered in this proceeding. The two hospitals which currently serve the south Palm Beach County area are the Boca Raton Community Hospital (Boca Community) located in Boca Raton and the Bethesda Memorial Hospital (Bethesda) located in Boynton Beach and operated by the District. Both facilities are within a thirty minute driving distance for 95 percent of the population of the southwestern portion of Palm Beach County. According to patient origin studies, Boca Community draws some 7.7 percent of its patients from the southwest portion of Palm Beach County and Bethesda draws only 1.8 percent of its patients from such area. The primary service areas of both facilities are concentrated on the coastal side of the County. Boca Community has a closed medical staff and does not offer obstetrical services. In 1981, Boca Community had an average occupancy level of 91 percent. During the tourist season which runs from November to April of each year, Boca Community was overcrowded, at times operating at a 100 percent occupancy rate. Oftentimes, patients were either turned away or were placed in hallway or holding room beds. There were occasions during the tourist season when the Del Trail Fire Control Tax District, which provides emergency medical rescue service for the residents of southwest Palm Beach County, was advised by Boca Community that they were on a Priority 1 status only. This meant that they could only utilize that facility for the most severe cases of cardiac or respiratory arrest. The Fire Control Tax District's paramedic program anticipates that it will respond to approximately 2,250 medical rescue calls in 1982. A hospital located in the southwestern portion of Palm Beach County would reduce the response time of paramedics, enable them to make more calls and provide better medical service for members of the Fire Control District. In 1981, Bethesda operated at an average occupancy rate of 82.9 percent, with the rate exceeding 90 percent during the tourist season. The HSP utilizes a 75 percent occupancy rate as a guideline for determining the need for additional hospital beds. In health care planning, it is the policy of HRS to utilize county-wide population estimates prepared by the University of Florida's Bureau of Economic and Business Research (BEBR). The most recent population figure promulgated by BEBR for Palm Beach County is a 1981 estimate of 615,165. This figure indicates an increase over its prior projections of almost 20,000. For the year 1985, the medium range population estimate for Palm Beach County is projected by the BEBR to be 707,900. This figure does not significantly differ from projections made by various planning experts who testified at the hearing. Some 99 percent of the population growth in the County is attributable to migration. Among the guidelines for determining need for additional hospital beds in an area are occupancy levels of existing hospital facilities, utilization rates and a desired number of beds per thousand people in an area. The HSP for Region VII considers an occupancy rate of 75 percent to be desirable, and utilizes the formula of 4 beds per thousand population in reaching determinations on the question of need. The State Health Plan, in accordance with federal guidelines, takes into consideration the factors of age of the population and utilization, including migration in and out of an area. Persons over age 65 normally utilize hospital beds and facilities four times as much as people under 65. Some 23 percent of the residents of the southwest area of Palm Beach County were 65 years of age or older. This compares with a national average of approximately 11 percent, and a county-wide average of 20 percent. Accordingly, in computing preliminary bed need projections for 1985, the 1981 Florida State Health Plan utilizes a formula of 4.25 beds per thousand population for HSA #7 as its medium estimate and a formula of 4.61 beds per thousand population as its high estimate. Utilizing the 4/1000 formula, and assuming a 1985 population of 707,900, the bed need for Palm Beach County in 1985 would be 2,832. A 4.25/1,000 formula produces a bed need of 3,009, and a 4.61/1,000 formula results in a bed need of 3,263. Given the exsiting licensed and approved 2,752 beds in the County as a whole, there would be a need in 1985 for an additional 80 beds using the 4.0 approach, 257 beds using the 4.25 approach, and 511 beds using the 4.61 approach. Utilizing the University of Florida population figures for Palm Beach County, distributing that population to various areas within the County in accordance with the Area Planning Board estimates, and further distributing ,beds between the facilities in the southwest area of the County based upon anticipated market shares, the District's health care planning expert determined there would be a need for 157 new beds by 1986 in the southwest area. This projection takes into account the new Delray Hospital, the 50-bed additions at Bethesda and Boca Community and utilizes an 80 percent occupancy rate. By allocating County population figures into subregions, NME's planning expert projected the population of the west Boca service area to be 43,598 by 1985. Utilizing two different methodologies -- occupancy levels and bed per thousand population -- NME's expert determined that there would be a minimum additional bed need of 170 to 188 in the west Boca service area in 1985 to 1986. The previous HSA 1980-1984 HSP only showed a need for 40 or 50 beds in Palm Beach County. The 1981-1985 HSP, which now takes into account the recently approved 160 beds at Delray, 50 at Bethesda and 50 at Boca Community, shows a need for an additional 128 beds. John F. Kennedy Hospital, which does not serve the southwest portion of the County, has been granted approval for 48 beds. The Boca Raton City Council and the Board of County Commissioners for Palm Beach County have each adopted resolutions citing the need for a new hospital in the West Boca area. Many physicians practicing in the Boca Raton area are experiencing their greatest growth in numbers of patients from the West Boca area. Several physicians experienced delays in admitting patients to Boca Community in 1981, and do not believe that that facility's expansion by 50 beds will alleviate the overcrowing at that institution. There is community support for a new hospital facility located in the southwest portion of Boca Raton. The approved and existing hospitals which serve residents of the southwest Boca Raton area have expansion capabilities of approximately 300 beds -- 50 at Boca Community, 90 at Bethesda and 160 at Delray. Expansion of an existing facility can result in lower construction and operational costs than the construction of a new facility. This would be dependent upon the existence of adequate ancillary facilities, adequate space, personnel capabilities and the desires of the existing facility to expand. Other than the 80-bed expansion at Delray which is currently in litigation, no evidence was adduced at the hearing that either Boca Community or Bethesda were seeking expansion beyond that which has previously been approved. The Southeastern Palm Beach County Hospital Taxing District was created by Special Act of the Legislature in 1953 to provide hospital services for the people in a specified geographical area. It is operated by an eight- member Board of Commissioners who are appointed by the Governor for staggered four-year terms. The District currently owns and operates a 350-bed full service hospital known as Bethesda Memorial Hospital in Boynton Beach. Its services include gynecological, pediatric and new born nursery services. Bethesda has the capacity to expand to 440 beds. In 1980, Bethesda received approximately $2,000,000 in ad valorem tax revenues. Without these tax revenues, Bethesda would have operated at a deficit in excess of $1,000,000. The District proposes to construct and operate a new hospital to serve the residents of southwest Palm Beach County. The service area for the new hospital appears to include some areas beyond the geographical boundaries of the District. It intends to construct 138 medical/surgical beds and 12 intensive care beds, for a total bed count of 150. The new facility will not have obstetrics or pediatric services. The total estimated cost of the project is $34,007,000, or a cost of $226,713.33 per bed. Its cost per square foot is $162.12. The District did not itemize its predevelopment costs and based its equipment costs as a percentage of construction costs. It is anticipated that the new facility will share many services and be linked closely with Bethesda. The two facilities will utilize the same Directors of Personnel, Purchasing and Finance. Other shared services will be the central computer service, clinical laboratory services, anatomical-pathological services, certain pharmacy services and legal services. A pathologist will be on-site at the new facility during normal working hours and on-call during off hours to perform those pathological services which require an immediate result. Other lab tests will be performed at Bethesda. It is anticipated that the new facility will be financed through the issuance of two series of tax-exempt revenue bonds. The District anticipates that it can secure bond financing at an 11 percent projected interest rate, and that 87 percent of the project will be financed by debt with an equity contribution by the District of $2.2 million. Ad valorem revenue is not expected to be the source-of repaying the debt. The District projects a loss of some $1.9 million during the first year of operation and an income of $99,484 during the second year of operation of the new facility. A 21-month construction period is anticipated. While the District proposes to locate its new facility on 20 acres of land at the northeast corner of Glades Road and Lyons Road, it had no formal interest in that property as of the time of the hearing. The site is presently zoned as agricultural and is owned by a savings and loan institution. Pursuant to a "gentlemen's agreement" between the institution and the Chairman of the District's Board, it is anticipated that the District can purchase this property at an estimated cost of $1,000,000. If the District is unable to purchase this property, it intends to use its power of eminent domain to acquire that site or another suitable site. The proposed District site will not require any major road improvements, though a traffic control signal may be necessary. National Medical Enterprises, Inc. owns and operates about 40 hospitals and 160 nursing homes and manages another 18 hospitals and 22 nursing homes throughout the United States. Its corporate headquarters are in Los Angeles, California, and it has a regional office in Tampa, Florida. NME has total revenues exceeding $1.4 billion, net income of $70 million and stockholders' equity of $420 million. As of November 30, 1981, NME had over $150 million in the bank and unused commitments from lenders for $170 million. NME has sufficient cash and cash flow to fund a new project without outside financing. If financing were chosen, it would be of a long term (20 year) unsecured nature at a 15 percent interest rate which would cover 65 percent of the project cost. The balance would come from NME's equity contribution. NME proposes to construct and operate a 175-bed hospital to serve the southwest area of Palm Beach County. There are to be 151 medical/surgical beds, 16 intensive care beds and 8 beds for obstetrics, for a total project cost of $30,688,290 or $175,361.65 per bed. The cost per-square foot is $127.00. The new facility will be operated by a local governing board composed of physicians and lay persons originally appointed by NME. The Administrator of the new facility will be appointed by and report to NME's regional office. Hospitals owned and managed by NME share common support services from both the corporate and regional offices. NME employs specialists and experts in the areas of nursing (recruitment and training), energy conservation, administration, communications, architectural and design matters, financial and legal matters, planning and development, management engineering, and purchasing. These professionals are available to NME facilities. National contracts for the procurement of equipment and supplies are available to NME hospitals. NME proposes an opening date of October or November, 1984 and estimates that it will have a net income of $615,000 after its first year of operation and a net income of $917,000 after the second full year of operation. NME proposes to locate its new facility adjacent to the corner of U.S. Highway 441 and Glades Road. It has an option to purchase 20 acres of land at $30,000 per acre. It intends to use 10 of the 20 acres for the hospital site and use the remaining 10 acres for medical office buildings. Site development costs are designated as $800,000. Its total cost of $30,688,290 is broken down into predevelopment costs of $120,000, building and construction costs of $22,646,490 and equipment costs of $7,921,800. NME's projected equipment costs were based upon a room-by-room analysis. The proposed site is presently zoned for agricultural use. Some major roadway improvements would be required, and the cost for these improvements have not been specifically determined or included in NME's projected project costs, other than the $800,000 designated for site development. NME's proposal includes an 8-bed obstetrical unit. Approximately 500 deliveries are expected during the first year of operation. The recognized health planning standard for determining need for an obstetrical unit in an urban area with a population in excess of 100,000 is whether the facility would perform 1,500 births per year. In Florida, some 105 licensed hospitals have obstetrical beds. 74 of those hospitals recorded less than 1,500 births per year. Population statistics broken down by age do not illustrate a significant need for additional obstetrical beds in the southwest area of the County. Obstetrics and pediatrics are currently available at Bethesda. Bethesda recently closed down 9 of its 24 pediatric beds, and, in February of 1982, that unit had a 42 percent occupancy level. Bethesda's nursery had an occupancy rate of 52 percent in 1981, and the 18 post-partum beds had an occupancy rate of 79 percent in 1981. If needed, Bethesda can convert some of its medical/surgical beds to postpartum beds. The Boca Raton Community Hospital has an 11-bed pediatrics unit. Both the District and NME demonstrated that they would have no difficulty in staffing their proposed facilities. Each has vigorous and innovative recruiting program. By comparing data from Bethesda and Palms of Pasadena in St. Petersburg, a facility owned and operated by NME, the District attempted to illustrate that a not-for-profit tax district hospital is able to render services in a more cost-effective manner and at less cost to the patient or charge payors than an investor-owned or proprietary hospital. However, the analysis performed by the District's witness did not include the ad valorem tax income which the District receives and did not consider or compare the types or intensity of services offered or performed by the two different hospitals. It is impossible to infer the cost-effectiveness of a hospital without knowledge of the volume, intensity and mix of services provided. NME's application for a Certificate of Need included a CT scanner at its new proposed facility. No evidence was adduced at the hearing concerning the need for an additional CT scanner in the Palm Beach County area.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that a final order be entered by HRS determining that a need for a least a 170-bed hospital exists in the southwest area of Palm Beach County and that NME's application to construct such a hospital be approved, with the exception of that portion which proposes eight obstetrical beds and a CT scanner. It is further recommended that the application of the District to construct a 150-bed hospital be DENIED. Respectfully submitted and entered this 23rd 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 23rd day of August, 1982. COPIES FURNISHED: Fred W. Baggett, Esquire and Michael J. Cherniga, Esquire Roberts, Baggett, LaFace, Richards and Wiser 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302 C. Gary Williams, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Washington Square Building 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32303 Eric J. Haugdahl, Esquire Assistant General Counsel Department of HRS 1323 Winewood Blvd. Building 1, Room 406 Tallahassee, Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Gary Clarke Deputy Assistant Secretary Health Planning & Development 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
The Issue The issues in this case are whether the Respondent committed violations alleged in an Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material to this case, Respondent was employed by Petitioner as a school psychologist. At all times material to this case, Respondent was a member of the Classroom Teachers Association (CTA) Bargaining Unit. At all times material to this case, Respondent was receiving benefits under a valid claim for Workers' Compensation benefits arising from an accident on January 7, 2000. In conjunction with investigations as to Respondent's eligibility for Workers' Compensation benefits, video surveillance of Respondent's activities was conducted on several occasions. At the beginning of the 1999-2000 school year, Dr. Laakso worked for Petitioner as a school psychologist in Area 3, and was assigned to Palm Beach Lakes High School, Forest Hill High School, and Conniston Middle School. His immediate supervisor was Mary Kate Boyle, the Area 3 Exceptional Student Education (ESE) Team Leader. On January 7, 2000, Dr. Laakso was working in his car while parked in the Palm Beach Lakes High School parking lot, and when exiting the car, hit his head on the door jamb causing a compression of his spine. He then received a second injury to his back while pulling psychological testing kits out of his car. Dr. Laakso submitted this injury to Petitioner as a workers' compensation injury, and it was covered as such. Christopher Brown, M.D., an orthopedic surgeon and one of Dr. Laakso's workers' compensation physicians, treated Dr. Laakso. On February 8, 2000, Dr. Brown placed Dr. Laakso on a "no-work" status. Dr. Laakso suffers from cervical spinal stenosis, which is a narrowing of the spinal canal. Because Dr. Laakso had underlying spinal stenosis secondary to arthritis, combined with disc herniations, his orthopedic surgeon, Dr. Brown, diagnosed Dr. Laakso's stenosis as severe. Also on February 8, 2000, Ms. Boyle held an investigative meeting with Respondent and his then-attorney, Stephen Fried, to discuss Respondent's continued absences since January 7, 2000 (the date of Respondent's workers' compensation injury) and his work status. In a letter to Dr. Laakso dated February 9, 2000, Ms. Boyle explained what her expectations were with regard to Respondent's absence and work status. On February 9, 2000, Dr. Laakso requested unpaid sick leave for January 11, 2000 to May 31, 2000, which the School Board granted. In March of 2000, Dr. Laakso was released back to light duty work, with restrictions. Some of the physical restrictions placed on Dr. Laakso's activities included no overhead use of the right upper extremity and no heavy use of the right upper extremity greater than 5 pounds. In addition, Dr. Laakso was told to be careful and to try not to hurt himself. Dr. Brown also imposed a 10 mile driving restriction on Dr. Laakso because Dr. Brown believed Dr. Laakso's spinal stenosis placed him at increased risk if he hit his head or was in a car accident. Dr. Laakso argued against the driving restriction because he was capable of driving and believed that the restriction would "mess things up" if he was unable to use his car. Dr. Laakso neither asked for the driving restriction nor represented that he needed the restriction.4 Dr. Laakso conveyed the driving restrictions to both Ms. Boyle and Linda Meyers in Risk Management. On March 21, 2000, Dr. Laakso was given a light duty placement in which he was assigned to Atlantic High School watching the school's security cameras. This assignment was for Dr. Laakso's regularly scheduled 7.5 hours a day, and was within the physical and driving restrictions imposed by Dr. Brown. While on light duty assignment at Atlantic High School, Dr. Laakso reported to Assistant Principal, Marshall Bellin. Dr. Laakso also submitted his time sheets to Mr. Bellin for Mr. Bellin's verification and signature. After Mr. Bellin signed the light duty time sheets, Dr. Laakso faxed them to Ms. Boyle for payroll purposes. Around this time period, in approximately April of 2000, the third party administrator, FARA, who handles the School Board's Workers' Compensation claims, hired private investigator Richard Mains to conduct surveillance of Dr. Laakso. Mains observed Dr. Laakso at various times from April 3, 2000 through October 2, 2000. Mains documented Respondent's driving to and from his Matlacha home and the activities in which he engaged while there. Mains did not know whether Dr. Laakso was taking pain or anti-inflammatory medication, or whether Dr. Laakso was under the influence of these types of medications at the times Mains observed him. On May 17, 2000, Ms. Boyle held another investigative meeting regarding Respondent's absences while on light duty. The minutes from that meeting indicate that Ms. Boyle expressed her concern to Dr. Laakso regarding his absences, discussed his light duty assignment at Atlantic High School, and directed him to call her beeper if he was going to be absent. He was also directed to provide a doctor's note if he was absent. Dr. Laakso remained in the light duty assignment at Atlantic High School for the remainder of the 1999-2000 school year. On Wednesday, August 9, 2000, the first day of the 2000-2001 school year, Dr. Laakso again reported to Atlantic High School to resume his light duty placement. On August 15, 2000, Marshall Bellin signed Respondent's light duty sign-in sheet, which covered Dr. Laakso's work attendance for August 9, 10, 11, and 14, 2000. Around August 14 or 15, 2000, Dr. Laakso received verbal notification that because his driving restriction had been lifted, he was being taken off light duty assignment and was to report to Area 3. Prior to this verbal notification, Dr. Laakso had not been advised by his physicians that his driving restriction had been lifted. However, he subsequently learned through someone at the Risk Management Department that, in fact, the driving restriction had been lifted. Upon hearing the news, Dr. Laakso contacted Dr. Brown. When he went to see Dr. Brown, Dr. Brown explained to Respondent that the Board had sent him a questionnaire asking whether he believed that Dr. Laakso could drive a car as opposed to whether he should drive a car. Dr. Brown further explained that he responded that Dr. Laakso could drive a car, but felt he had made a mistake as he felt it was still dangerous for Dr. Laakso to drive. Accordingly, on August 17, 2000, Dr. Brown reinstated Dr. Laakso's driving restriction of no more than 10 minutes. On August 17, 2000, Dr. Laakso sent a memo to Ms. Boyle indicating that his driving restriction had been reinstated. A copy of the note from Dr. Brown was attached to this memo. Because of her continuing concern regarding Respondent's absences, on October 2, 2000, Ms. Boyle held another "investigative meeting" regarding Dr. Laakso's absences. This meeting resulted in Boyle's issuing Dr. Laakso a written reprimand for unacceptable and unexcused absences, failure to call in intended absences as required, and insubordination. The written reprimand specifically addressed Dr. Laakso's absences on August 9, 10, 11, 22, and September 20, 27, 28, and 29. Ms. Boyle believed her issuance of the written reprimand dated October 2, 2000, was consistent with the progressive discipline policy. At the time that Ms. Boyle wrote the reprimand, she also notified the District's Professional Standards Department and requested a formal investigation of Respondent's absences. Ms. Boyle then contacted Ray Miller in Professional Standards to be sure that she was following appropriate procedure. In October of 2000, Ray Miller received Respondent's case for investigation, and the investigation was assigned case number 101. Specifically, Miller investigated allegations involving Respondent's misuse of leave, unauthorized absence, failure to call in and report absences as required, and insubordination for the time period of January 2000 through December 2000. At the time of his interview with Respondent, Miller had a surveillance video and a report of Respondent's activities for April of 2000. Respondent neither denied that he was the subject of the video nor that he failed to report and call in his absences. Shortly before December 4, 2000, Miller signed off on the investigative report for case number 101, and on December 4, 2000, Paul Lachance issued a letter to Dr. Laakso indicating that the investigation was complete, and that a determination of probable cause had been made. The investigative report was then reviewed by the Case Management Review Committee to determine whether there was just cause to recommend discipline and, if so, provide a discipline recommendation. The Committee found just cause and recommended Dr. Laakso's termination. A number of meetings were held in December 2000 with representatives of Petitioner, Dr. Laakso, and his then- attorney, Mr. Fried. As a result of these meetings, an informal settlement was reached; Dr. Laakso's employment was not terminated, but rather he was transferred to the Area 1 ESE office. By a letter to the file dated January 8, 2001, Paul Lachance, Director of Professional Standards, administratively closed case number 01-101 against Dr. Laakso with "no action." While assigned to Area 1, Dr. Laakso was under the supervision of Area 1 ESE Team Leader, Paul Sayrs. As supervisor, Mr. Sayrs was responsible for keeping track of Respondent's attendance. Accordingly, Sayrs directed Respondent to call and notify secretary Judy Fabris if he was going to be absent, who in turn would notify Mr. Sayrs. While assigned to Area 1, Dr. Laakso missed work for several days in January and February 2001, and was also out for most of March and April 2001. On April 4, 2001, Mr. Sayrs sent Dr. Laakso a letter listing the dates of his absences and directing him to submit a doctor's note for the dates listed, as well as for any future absences. The next day, April 5, 2001, Mr. Sayrs sent another letter to Dr. Laakso advising him he was currently absent without approved leave. Mr. Sayrs advised Respondent further that due to an absence of correspondence from Respondent, Mr. Sayrs would assume Respondent had decided to discontinue working for Petitioner and Respondent's name would be submitted to the School Board for acceptance of Respondent's resignation. Dr. Laakso immediately contacted Dr. Sachs regarding Mr. Sayrs' request for medical documentation, but was unable to get an appointment with Dr. Sachs until April 20th. However, prior to his April 20th appointment, Dr. Laakso forwarded to Dr. Sachs a copy of the District's letter, which indicated he would be terminated if he did not provide the requested documentation prior to his appointment on April 20th. In response, Dr. Sachs accounted for Dr. Laakso's absences, noting they were due to his symptoms and cervical condition. Additionally, Dr. Laakso followed through by faxing his Request for Leave of Absence without Pay form with his signature, dated April 18, 2001, directly to Dr. Sachs for his signature. The leave was ultimately granted retroactive to March 8, 2001, prior to Dr. Laakso's being terminated by the District. On April 18, 2001, Dr. Laakso sent a handwritten note to Dan McGrath explaining his absences. Dr. Laakso attached to his note to Mr. McGrath two documents from Dr. Sachs, one dated April 15, 2001, and the other dated April 6, 2000. On May 18, 2001, Paul Sayrs evaluated Dr. Laakso's performance. The evaluation sheet indicated that Dr. Laakso was "presently on a medical leave of absence." Dr. Laakso has a second home in Matlacha, located on the other side of Cape Coral. Matlacha is located in the Fort Myers area and is approximately 150 miles from the West Palm Beach area, roughly a three-hour trip using country roads. Because he had not been feeling well, Dr. Laakso had not been taking care of his property in Matlacha. As a result, he received notices from the county telling him he needed to clear up the property or face a potential daily fine of $225. Specifically, the county informed Dr. Laakso that he needed to mow the grass, move a boat, register a pickup truck, and park the truck somewhere where it was not in open view. He asked for an extension in which to do these things, which was granted. However, the county advised Dr. Laakso that if he did not get the work done by the date established, the daily fine would be imposed. Although while at his Matlacha home Dr. Laakso did work outside of the restrictions imposed on him by his physician, he could work for 20 or 30 minutes and then go inside and rest, unlike when he was at work for the School Board, which required he work a full eight-hour day. While he was on his Matlacha property, he continued his daily swimming as part of his physical therapy, which he had discussed with, and received approval for, from Dr. Brown. At no time did Dr. Laakso attempt to hide the fact that he drove to the Matlacha property or that he worked in his yard while there. In fact, he disclosed this information when deposed in his workers' compensation case, and he discussed it with his doctor. While the doctor did not give Dr. Laakso permission for this type of conduct, Dr. Laakso did discuss it with him.5 Following the closing of the first investigation numbered 101, the office of Professional Standards received a memo from Diane Howard, Director of Risk Management, dated January 9, 2001. Ms. Howard was requesting a reinvestigation of Dr. Laakso's absences. In response to this memo, Miller did not interview Respondent, but instead viewed surveillance videotapes from August 11 through October 1 or 2, 2000. In addition to the videos, Miller reviewed memos from Nancy Patrick, Mary Kate Boyle, and Paul Sayrs. Miller testified that the difference between this investigation and the previous one was that it involved a different period of time, both for the videos and regarding issues of Respondent's attendance in January, February, and March of 2001. The allegations against Respondent for this investigation were that he was obtaining leave due to sickness or illness and that he was performing actions that were inconsistent with his alleged illness or sickness. This second investigation followed the same pattern as the first and was sent to the Committee for review. The Committee again recommended Dr. Laakso's termination. Dr. Laakso timely requested an administrative hearing, and these proceedings followed. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) . . . [e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in this case dismissing all charges in the Administrative Compliant, reinstating Respondent to his position of employment with the School Board, and providing Respondent with such back pay and attendant benefits as are authorized by law. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2003.
