Findings Of Fact The Public Employer filed a petition for determination of managerial and confidential employees with PERC on February 21, 1975. The job positions for which managerial or confidential status is requested, and the persons who occupy the positions are set out in the petition. The petition was presented to the Public Employee Relations Commission on May 8, 1975. The hearing in this case was scheduled by notice dated August 1, 1975. The Public Employer recognized the MCEA as the exclusive bargaining agent of instructional personnel employed by the Public Employer prior to the instant petition being filed. A contract between the Public Employer and MCEA was signed on August 26, 1975, and was received in evidence at the hearing as Public Employer's Exhibit 5. The Public Employer's evidence respecting the responsibilities, duties, and day-to-day activities of the persons who occupy the positions for which managerial or confidential status is being sought was received primarily in the form of job descriptions, and a chart showing the functions of each position which justify managerial or confidential status as perceived by the Public Employer. The job descriptions were received in evidence as Public Employer's Exhibit 2. The chart was received in evidence as Public Employer's Exhibit 3. The job descriptions accurately describe the duties, responsibilities, and day- to-day activities of each position. If the persons who occupy the positions are not performing their duties in accordance with the descriptions, then they are performing their duties improperly. It is likely that if the jobs were being performed contrary to the descriptions, this fact would be known to the Superintendent. The positions for which managerial or confidential status is being sought are described in Public Employer's Exhibit 2 beginning at the following indicated page: the Assistant Superintendent for Service at page 27, the Assistant Superintendent for Instruction at page 5, the Assistant Superintendent for Business Affairs at page 32, the Director of Personnel at page 24, the Director of Instructional Support and People Personnel Services at page 20, the Director of Adult Education at page 17, the Director of Exceptional Child and Special Services at page 13, the Director of Federal Programs at page 22, the Director of Career Education at page 16, the Director of Secondary Education at page 7, the Director of Elementary Education at page 9, the Director of Vocational Education at page 15, the Director of Community Manpower Programs at page 18, the Director of Planning and Research at page 14, the Maintenance Supervisor at page 28, the Transportation Supervisor at page 29, the Supervisor of Custodial Services at page 30, the Food Service Supervisor at page 34, the High School Principal at page 8a, the Middle School Principals at page 8f, the Elementary School Principals at page 11, the Assistant High School Principals at page 8c, the Assistant Middle School Principals at page 8h, the High School Department Heads at page 8d, the Curriculum Coordinators at page 8i and 12a, the Helping Teacher at page 12c. The references in the chart which was received as Public Employer's Exhibit 3 are to paragraphs in the job descriptions set out in Public Employer's Exhibit 2. The Public Employer is seeking to implement what was described at the hearing as a "team management system" in order to accomplish management a baser level. Under this system Principals, Assistant Principals, and department Heads would take on increased management functions. Principals are expected to initiate action respecting policy changes which they consider appropriate. The School Board, the Public Employer's legislative body, is ultimately responsible for adopting policy. The School Board typically adopts policies based upon the recommendations of the elected Superintendent, the Public Employer's chief executive officer. The Principal's recommendations respecting policy, especially policy which would be applicable primarily in the Principal's school are given great weight. One recent policy making decision in which a principal played a part involved parking at Martin County High school. The school Principal advised the superintendent of a need for a change in rules and regulations respecting parking. The principal went before the Board to describe the problem, and the Board directed the Principal and the Assistant Superintendent for Service to write a new policy for the Board's consideration. This policy was formulated primarily by the school Principal and was presented to the superintendent. The superintendent presented the policy to the School Board and recommended its adoption. The School Board adopted the policy without amendment. There are ten Principals employed by the Public Employer. There are one High School Principal, three Middle School Principals, and six Elementary School Principals. The High School Principal, one Middle School Principal and one Elementary School Principal were appointed by the Public Employer to the team which negotiated a contract with the MCEA. Under the agreement that has been signed by the Public Employer and by the MCEA, the Principal is charged with administering the agreement within his or her school. The Principal takes on a primary responsibility in the grievance procedure established in the agreement. The Principal is primarily responsible for making determinations respecting hiring and firing of personnel employed at his or her school. The Principal does not have the absolute authority to hire or fire personnel. The Principal makes recommendations to the superintendent, who in turn makes recommendations to the School Board. The School Board has the ultimate authority. In Martin County the Principals' recommendations respecting hiring and firing are followed, possibly without exception. The Principal is responsible for evaluating the personnel employed at his or her school. The evaluation is done on a form that has been adopted by the School Board. The evaluation goes into the employee's personnel file, and becomes a part of the employee's permanent employment record. The Public Employer's system for formulating and administering its budget is somewhat decentralized. Money is budgeted to a school based on the number of students. The school budget, which does not include expenditures for salaries or capital improvements, is prepared by the Principal. The Principal's budget is for all school supplies including textbooks. The central administration reviews the Principal's budget and would have authority to change items that were out of line. The budget ultimately adopted by the School Board actually reflects ten separate school budgets. The Principal has no control over the amount of money that will be budgeted to his or her school, but the Principal does have considerable latitude in setting the budget priorities for his or her school. Once the budget is adopted, the Principal has the authority to make expenditures based upon the budget. The Principal signs all purchase requisitions emanating from his or her school. The duties of Assistant Principals vary among the schools in Martin County, depending in part upon the responsibilities which are delegated by the Principal to the Assistant Principal. Virtually any of the Principal's responsibilities can be delegated by the Principal to the Assistant Principal, although ultimate responsibility would remain with the Principal. Generally Assistant Principals are charged with establishing schedules, and assigning teachers. The witness Clara Bevis Fulton is presently Principal at Martin County High School. She was previously Assistant Principal. As Assistant Principal she would hold initial interviews with job applicants. If the applicant appeared satisfactory she would call in the Department Head in the area in which the applicant works and would check the applicant's references. She would evaluate the teachers based on information given to her by Department Heads, and based upon her own classroom visits. She made recommendations to the Principal respecting hiring and firing. The Principal's budget responsibilities were handled by Mrs. Fulton while she was Assistant Principal at Martin County High School. There are six Department Heads employed by the Public Employer. All of the Department heads work at Martin County High School. The Department Heads typically spend approximately 4/5 of their time as classroom teachers, and the remaining time fulfilling administrative duties. The Director of Guidance, who is classified as a Department Head, spends more than half of his time on administrative duties. Department Heads are paid on a management pay scale rather than on a teacher's pay scale. The opinions of the Department Heads respecting new employees and old employees are solicited by the Principal or Assistant Principals. The Department Heads give considerable input into teacher evaluations. Department Heads serve as the first step in the grievance procedure adopted in the collective bargaining contract that has been signed by the Public Employer and by the MCEA. The School Superintendent refers to Department Heads as the front line of management. The Principal or Assistant Principals seek information from the Department Heads respecting the budgetary needs of their department. This information would primarily amount to an explanation of the coming year's needs in relation to the past year. This budget information relates to supplies and textbooks, not to salaries. The primary function of Curriculum Coordinators is to plan and administer a school's curriculum. The Curriculum Coordinator plays a role in evaluating teachers by forwarding information to the Principal or Assistant Principals. Information is sought from the curriculum Coordinators respecting budgetary needs, especially from the perspective of the priority of conflicting needs. The Curriculum Coordinator has no classroom duties. ENTERED this 16 day of January, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: All parties of record
Findings Of Fact At all times pertinent to the allegations contained in the Notice of Charges, Williams was employed by the School Board in a variety of capacities. With the exception of paragraph 22, which, to preserve continuity, will be consolidated with paragraph 2 of the Notice of Charges, the allegations shall be considered seriatum. That during the 1965-1966 school year, the Respondent did receive an overall unsatisfactory rating. That the Respondent in the 1965 and 1966 school years received a poor rat- ing in the following area: "Relation- ship with others," and "Is healthy and emotionally stable;" and further received an unsatisfactory rating in the category of "works well with others," end "demon- strates professional attitude and imple- menting school policy." The evidence indicates that for the school year 1965-1966, Williams received an average score of 3.3 on his Dade County evaluation form. According to the form an average rating below 3.5 indicates unsatisfactory work in Dade County schools. On that same evaluation form Williams received a 3.0 rating for the category "Works well with others." There was no rating for "Is healthy and emotionally stable." Williams received a 2.8 rating for the category "Understands and supports school policies aid demonstrates a professional attitude in implementing them." From the 1965-1966 school year until the present Williams has consistently received satisfactory overall ratings for his work in the Dade County schools. That on or about January 16, 1968, the Respondent, while a visiting teacher with the School Board of Dade County, and more particularly assigned to Gladeview Ele- mentary School, the Respondent, did without reason or authority demanded [sic] of the principal, Mr. Leonard Wollman, his reason for having a child stand outside and perform a task signed by the principal. Said demand made by the Respondent was made in a loud, rude and unprofessional manner, and was over- heard by numerous persons located within the confines of the school. On or about January 16, 1968, Mr. Leonard Wollman was principal of Gladeview Elementary School and at that time observed a student throw an apple out a school window. When the student refused to pick up the apple, Mr. Wollman made the student pick it up along with other trash. At that time, Williams criticized the handling of the incident by Wollman and claimed that the child was being mistreated. There was a lack of competent substantial evidence to establish that Williams' inquiries as to the handling of the incident were made in a loud, rude and unprofessional manner. There was a complete absence of evidence to establish that Williams' comments were overheard by numerous persons located within the confines of the school. That during the 1969-1970 school year, the Respondent, Charles Williams, did receive an unsatisfactory evaluation in the area of personal characteristics and leadership, notwithstanding an overall average of 4.2. The Dade County evaluation form for school year 1969-1970 reflects that Williams received a score of 3.0 in each of two categories of personal characteristics and leadership. The remarks section indicates "Needs improvement in human relations and group processes, which hopefully he will develop within the year. Otherwise, performance this year has been outstanding." That during the year 1970, more particularly, during the month of October, 1970, the Respondent was required by the Director of the North Central District to submit to the district office a plan for gifted children to participate in a program as outlined by the District Office. Further, as a result of the Respondent's failure to comply with the directive of the District Office two deserving children from the Respondent's school were left out of the program. There is no evidence in the record to establish that Williams was required to submit a plan for gifted children. There was evidence to establish that Williams was required to submit the names of students in his school who qualified for the gifted child program by October 30, 1970, and that such names were submitted late. Notwithstanding the late submission, the names were still considered for the gifted child program. Furthermore, there is an absence of competent substantial evidence to establish that at deserving children were left out of the program because of the actions of Williams. In the final analysis, Williams is charged with failing to submit a plan when the evidence shows that he was not required to submit a plan. Accordingly, the charge is not supported by the evidence. That on or about November 23, 1970, the Respondent did berate and make sarcastic and provocative remarks to Mrs. Carol Kleinfeld because said teacher had sought a transfer from the school where the Respondent served as principal. On Motion of Williams at the hearing, the undersigned ruled that there was a complete absence of evidence to support this charge. That on or about March 1, 1971, the Respondent did berate Mrs. Carol Kleinfeld who [was a] teacher at the school where the Respondent is principal and further did scream and shout at [her] in a violent and threatening manner further threatening that he would fire all parties concerned. During the 1970-1971 school year, Carol Kleinfeld worked for Williams at Primary C Elementary School. From time to time, Williams and Mrs. Kleinfeld engaged in discussions concerning Mrs. Kleinfeld's performance of her duties. The evidence establishes that Williams was displeased with the performance and gave Mrs. Kleinfeld the lowest possible performance rating. The evidence also establishes that Williams pointed his finger at Ms. Kleinfeld on one or more occasions. However, there is an absence of competent substantial evidence to establish that Williams berated Ms. Kleinfeld or that he screamed and shouted at her in a violent and threatening manner. That during the 1970-1971 school year, the Respondent acted in such an unprofes- sional fashion towards teachers assigned to his school, that numerous teachers requested transfers to other schools as a result of the humiliating and threaten- ing attitudes of the Respondent. There was no competent substantial evidence to establish that Williams acted in an unprofessional manner toward his teachers or that numerous teachers requested transfers because of Williams' conduct. That on or about April 4, 1975, the Respondent did, in front of children and custodians, harass, threaten and berate one Franklin Clark, Coordinator of Primary C Elementary School, con- cerning an event which did not happen. On April 4, 1975, Franklin Clark was Community School Coordinator for Primary C Elementary School. Clark's working hours were from 2:00 to 10:00 P.M. On several occasions, prior to that date, Clark had taken extended supper without informing Williams. When Williams discovered this practice, he had occasion to correct Clark and reiterate the requirement that Clark be present at the School for the appropriate period of time. On the day in question, Williams confronted Clark with an accusation that Clark had not been present during his proper working hours the night before. Clark denied the accusation. While Williams was angry during that conversation, there was no evidence to establish that he harassed, threatened or berated Clark during the encounter. That during the year 1975, the Respondent did fail to cooperate with other school principals, more particularly Ms. Della A. Zaher, principal at Edison Park Elementary School, in that he failed to cooperate with a fellow school principal in establishing and coordinating the articulation plans for the second and third grade students. While the evidence shows that Williams did not in fact work with Ms. Zaher in establishing articulation plans for second and third grade students, the record is devoid of any evidence which would establish that Williams was required to do so. In fact, inter school cooperation was necessary only as desired by participating principals. The evidence does establish that Williams followed prescribed procedure for articulation plans and that there would have been no real benefit in deeling with Ms. Zeher as she had requested. That on or about November 19, 1976, the Respondent did leave a meeting early without authorization which meeting was for the purpose of the area superintendent to explain the alternative plans for attendance. The evidence establishes that on November 19, 1976, Williams attended a meeting of principals, directors, and area office personnel, called by the area superintendent. Williams left the meeting early. However, the evidence affirmatively establishes that no permission was required for any of the participants of the meeting to leave early. That during the month of November, 1976, the Respondent did fail to observe and follow the purposes outlined by Robert Little Supervisor of the attendance office, in his memorandum entitled, "Pro- cedures and Calendar for the Development of the 1977-78 Attendant Zone Changes," dated November 4, 1976. That by failing to follow the plan as outlined by the memorandum, the Respondent's actions created the potential for negative parent/community reaction. That the Respondent did not provide a written plan to the area office for con- sideration until February 8, 1977, and said report was scheduled to be rendered to the area office and the area superintendent on November 19, 1976. All other principals met this deadline. The evidence affirmatively establishes that the memorandum in question did not require Williams to do anything. The alternatives available in the memorandum were optional on the part of principals. On Motion of Williams, the Hearing Officer declared that there was insufficient evidence to establish the allegations of the foregoing charges. That on or about July 11, 1977, the respondent failed to be a witness for the School Board of Dade County which involved the suspension of an employee who was under the direction and control of the Respondent while he was principal at the Primary C Elementary School [sic]. That his refusal to be a witness was without foundation and further, was his duty and responsibility as an employee of the School Board of Dade County. On July 11, 1977, Williams was called to a conference regarding a hearing that was to be held that afternoon, involving another employee of the School Board. Williams went to the conference and became upset because he believed certain questions propounded to him were improper. Williams, however, was neither requested nor directed to be a witness at the hearing to be held later that day. No subpoena was issued to compel Williams' attendance at that hearing. That during the 1978-1979 school year, numerous teachers at the Primary C Elementary School, where the Respondent was assigned as principal, have sought reassignment because of the open criticism and un- warranted harassment by the Respondent. This charge is not substantiated by competent substantial evidence. While the evidence does indicate that Williams had a small number of disagreements with one or two teachers during that school year, the evidence further establishes that the overwhelming majority of the teachers at that school during that school year hold Williams in high regard. There is am absence of evidence to establish that numerous teachers sought reassignment. That on or about November 8, 1978, a principal's meeting was held for the purpose of assisting administrator's review procedures used to remediate professional personnel where performance is deficient and at said meeting, the Respondent acted in a negative and disruptive manner, so as to make the meeting ineffective for all persons concerned. This charge is unsupported by the evidence. The evidence does establish that at the meeting in question, Williams fully participated and asked pertinent, incisive questions of those conducting the meeting. That on or about January 9, 1979, the area superintendant [sic] attempted to have a conference with the Respondent con- cerning specific recommendations for improvement, and at said conference the Respondent was insubordinate, disruptive, hostile and negative toward the area superintendant [sic], in such a manner as to make the meeting an ineffective one, and thus the meeting had to be terminated because of the behavior of the Respondent. At the hearing in this cause, there was made available a complete transcript of the conference held on January 9, 1979, with Williams and the area superintendent. The document, received as Respondent's Exhibit "Y", demonstrates that Williams was neither insubordinate, disruptive, hostile or negative. In fact, the area superintendant terminated the meeting after ascertaining that Williams had no further questions regarding the recommendations for improvement which were given to Williams at the meeting. That in the school year 1969-1970 it was further noted that the Respondent needed improvement in "Human relations" and "Group processes." (As amended at the hearing in this cause.) The Dade County evaluation form for school year 1969-1970 reflects that Williams received an overall score of 4.2 for that school year. This constitutes a satisfactory rating in the Dade County School System. The remarks section says "Needs improvement in human relations and group processes which hopefully he will develop within the year. Otherwise his performance this year has been outstanding." 25. Evaluations for school years 1970-1971, 1971-1972, 1972-1973, 1973- 1974, 1974-1975, 1975-1976, 1976-1977 and 1977-1978, all show satisfactory performance ratings in the areas in question. Furthermore, these ratings reflect that while Williams is not a perfect individual, he is an outstanding educator who has made continued significant contributions to the Dade County School System and to the students under his care.
The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was employed by Petitioner under a continuing contract. The Respondent, Muriel Johnson Krueger, holds Florida teaching certificate number #0367469 issued by the Florida Department of Education covering grades K through 6. The Respondent is also certified in Florida for administration and supervision, grades K through 12. She also holds a Wisconsin teaching certificate. The Respondent taught in Wisconsin for a number of years; she taught in a one-room school house, grades 1 through 5. She began teaching in Florida in 1974 at Brooksville Primary School in Hernando County, where she taught first grade for two years. She next taught first grade at Moton School Center (Moton) also in Hernando County, for four years. She received her continuing contract in 1977. In 1979, the Respondent was appointed primary specialist at Moton; she held that position until August, 1985. As primary specialist, the Respondent was not assigned to a classroom; she worked primarily with teachers and teachers' aides. She was not responsible for drawing up lesson plans, recording grades, or developing pacing schedules, as those procedures are used in the ordinary classroom. The Respondent received favorable evaluations throughout her career in the Hernando County school system, until January, 1986. However, Respondent has never received an evaluation of her performance which would support her dismissal. In March, 1985, the Respondent was diagnosed as having certain physical and psychological problems, including diabetes and atypical psychosis. The Respondent's medical conditions, including the details regarding her psychological illness, were reported to the school system by the Respondent's doctors, Dr. Renee Haney, a psychiatrist and Dr. Joanne Pegg- McNab., a psychologist. In August, 1985, two days prior to the commencement of the school year, the Respondent was notified by the Petitioner that she would be teaching third grade at Spring Hill Elementary School (Spring Hill) during the 1985-86 school year. Previously, the Respondent had been given to understand, based on representations made to her by school administrators, that she would be teaching second grade in 1985-1986. The Respondent had prepared materials for the teaching of second grade, which she was unable to use in teaching third grade. Louise Ross, principal of Spring Hill, was aware that Respondent had not been a classroom teacher for at least four years prior to Respondent coming to Spring Hill in August, 1985. Ross was aware of Respondent's treatment for psychological illness. Prior to the students' return, the Respondent worked one week at Spring Hill. During that period, Respondent attended general meetings, and although Respondent received a packet of material during this period, it did not contain any specific instruction in regard to preparing lesson plans, grading or pacing. Respondent received specific written instruction regarding the recording of grades and pacing at a later date. Respondent did not receive any specific verbal or written instructions from Ross or any other person respecting the procedures in effect at Spring Hill in regard to grading and pacing until the memorandums of September 24, 1985 and November 19, 1985 from Ross concerning grades and pacing, and the December 16, 1985 letter to Respondent from Ross setting forth Ross' concerns about Respondent's procedures in grading, pacing, and lesson plan preparation that were covered in the meeting between Ross and Respondent on December 16, 1985. On September 24, 1985, approximately one month after school opened on August 22, 1985, Ross issued a memorandum regarding the number of grades to be recorded for each subject, and the procedure for recording the grades. On November 19, 1985 Ross issued a memorandum regarding the Ginn Reading Program (pacing student in reading). Both the memorandum and the chart attached pointed out it was a "guide" and that the primary concern was for the student to master the material. There is insufficient evidence to show that Respondent received this memorandum prior to returning to work on December 16, 1985. No documents concerning the pacing in other subjects were issued to Respondent. Pacing involves setting a pace for the teacher and the student to cover the required material in a set time and yet allow the student to master the subject matter. The failure to properly pace a class usually results in the student requiring remediation in the subject matter. Although Ross collected and reviewed Respondent's lesson plan books during the beginning of the school year and prior to Respondent going on sick leave in November, 1985, Ross did not make any suggestions or criticisms concerning pacing because when she checked the lesson plan books Ross found them sufficient. Respondent was aware of the requirement of preparing lesson plans in advance, but at Moton, where she had previously taught, the requirement was to prepare three days of lesson plans in advance, not five days as was required at Spring Hill. Spring Hill required lesson plans to be ready on the Friday immediately prior to week of the lesson plans, but Ross had allowed teachers to prepare lesson plans over the week-end for the following week. Respondent was absent from school beginning November 20, 1985 through December 16, 1985 on approved sick leave. Respondent failed to prepare lesson plans and leave them for her substitute. Respondent's illness prevented her from preparing lesson plans for the period beginning November 25, 1985 and up until Respondent returned on December 16, 1985. However, the lesson plans for November 20, 21 and 22, 1985 should have been prepared prior to Respondent's illness. On December 16, 1985, the day Respondent returned from sick leave, Ross held a meeting with Respondent to advise her of certain changes in performance expected by Ross. The expected changes were the result of Ross reviewing Respondent's grade book and determining that the grades were not recorded in accordance with the September 24, 1985 memorandum, and reviewing Respondent's lesson plan books and determining that Respondent's class (an average class) was ahead of the top class in the third grade in reading and math. Respondent was advised of how to effect the changes and that compliance was expected by the beginning of the second semester. Although Respondent's third grade class was ahead of other third grade classes during the period of school prior to December 16, 1985, the student's mastery of the subject matter covered during this period was within an acceptable range, and remediation was normal. Subsequent to returning to work on December 16, 1987, and up until the Respondent took leave on March 12, 1987, the Respondent's pacing of her students was in accordance with school policy. Respondent's grade books may have shed some light on whether Respondent had properly recorded the student's grades but the grade books were not introduced into evidence. Prior to taking sick leave on November 20, 1985, the Respondent had, in addition to those grades recorded in her grade, recorded grades on sheets of paper in the back of her grade book contrary to the instructions given in the September 24, 1985 memorandum from Ross. However, Ross permitted the Respondent to record these grades in her grade book at a later time. Without knowing that it was against school policy, Respondent allowed her aides to record grades in her grade book. Subsequent to returning to work on December 16, 1987, and up until she took leave on March 12, 1986, the Respondent's recording of grades in her grade books was in substantial compliance with school policy. Although Respondent did not totally comply with the December 16, 1985 memorandum from Ross, her compliance with the memorandum satisfied Sonia Terrelonge, the third grade chairperson, who Ross had assigned the duty of working with Respondent to bring about compliance with the memorandum. Ross did not check Respondent's plan book or grade book on a regular basis as she had indicated in her memorandum of December 16, 1985 but delegated that responsibility to Terrelonge. On March 7, 1986, Respondent escorted her students to Terrelonge's portable classroom to see a movie and, since Respondent had detention duty, she picked up the students from other third grade classes on detention and returned to her portable classroom. At lunch time Respondent returned the students on detention to Terrelonge's portable classroom and escorted her students to lunch. After lunch Respondent escorted her students back to Terrelonge's portable classroom for the balance of the movie; again picked up the students on detention, and returned to her classroom. At the time scheduled for the conclusion of the movie, Respondent returned to Terrelonge's portable classroom to escort her students back to her classroom. Upon arrival at Terrelonge's classroom, Respondent discovered that her students had left earlier with either Maria Wolf or Catherine Winemiller or Jacqueline Mitchie, the other teachers having students at the movie. Although one of these three (3) teachers would have been responsible for supervising the return of Respondent's students to her classroom since Respondent was on detention duty, there is insufficient evidence to show which one had that responsibility. Upon return to her classroom Respondent observed some of her students outside the classroom unsupervised. Some of the students were running around and some were standing on a railing attempting to rescue a shoe from the roof. Respondent summoned her students into the classroom. None of the students were injured in any way. After the movie and the shoe incident the Respondent's children were "hyper". To calm them down, Respondent decided to go to the playground rather than to the scheduled special class. Respondent notified the special class teacher of this change but, without knowledge that she was required to notify Ross, failed to notify Ross of this change. This was the only special class the Respondent's student's missed while under her care during the 1985-86 school year. Other teachers took their students out on unscheduled recess when the children would not settle down. The evidence does not reveal any written policy concerning unscheduled recesses. Respondent kept blank discipline slips and omni passes in an unlocked desk drawer, and that students had on occasions filled out these slips without Respondent's knowledge. There was insufficient evidence to show that the children were under Respondent's supervision at the time the slips were taken out of the drawer and filled out. There were a number of disruptive and behavioral problem students in Respondent's class, but the number of disruptive or behavioral problem children in Respondent's class was not shown to be greater than in any other average third grade class. During the 1985-86 school year, Ross made frequent, unscheduled visits to Respondent's classroom and found Respondent's performance, including her classroom management, satisfactory, except on one (1) occasion, March 12, 1986. As a result of the shoe incident and skipping the special class, Ross called Respondent to a meeting on March 7, 1986 with Edward Poore, Assistant Superintendent, and Cathy Hogeland, Union Representative being present along with Ross and Respondent. As a result of this meeting, Ross advised Respondent to take the rest of that day off, which was Friday, and March 10, 1986 which was Monday. Respondent complied and returned to work on Tuesday, March 11, 1986. On March 11, 1986, the day Ross returned to school her students went on a field trip but Respondent was not allowed to accompany them. During the day Respondent worked on grading, grade books and planning. Also, on March 11, 1986, Ross gave Respondent a handwritten memorandum instructing her in class management, specifically addressing the supervision of students, class discipline, the following of lesson plans and attendance of students at special classes. Additionally, the memorandum instructed Respondent that teachers were not to eat lunch in the classroom and listed those areas where Respondent could eat lunch. On March 12, 1986, around noon, Respondent met with Ross, with Joanne Knight, being present as Union Representative. This meeting occurred as a result of Ross visiting Respondent's classroom and finding the students particularly disruptive and disorderly. When Respondent indicated that she could resume teaching her class that afternoon, Ross informed Respondent that she must take a leave of absence and have a complete physical examination and psychological evaluation or Ross would recommend her termination to the school board. Respondent was also informed by letter from Ross dated April 8, 1986 that her return to work would be based on the psychologist's report which should be submitted no later than May 31, 1986. Due to Ross' demands, Respondent requested leave and signed the necessary papers which had been filled out by the school board office. Respondent was put on leave without pay for the balance of the school year. Respondent resumed seeing Dr. Haney in April, 1986 but due to Dr. Haney's, or Respondent's oversight, an evaluation was not submitted until July 30, 1986. However, on July 1, 1986, Ross had recommended Respondent's dismissal to the superintendent based solely on Respondent's failure to provide the evaluation by May 31, 1986 without any further notice to Respondent other than the letter of April 8, 1986. Respondent learned of Ross's recommendation of dismissal sometime around July 16, 1986 when Ross notified her by letter. The letter also informed Respondent that this recommendation would go to the school board on August 5 1986. During Dr. Haney's treatment of Respondent in 1986, she prescribed medication for her mental condition which had no detrimental side effects on the Respondent. Dr. Haney's report of July 30, 1986 made no recommendation as to Respondent's ability to return to the classroom but left to the school system the interpretation of her findings. Dr. Arturo G. Gonzalez, Respondent's treating psychiatrist, began treating Respondent in October, 1986. Dr. Gonzalez's opinion was that while Respondent does have a mental condition, it is treatable with medication and does not affect Respondent's ability to teach. Dr. Gonzalez prescribes the same medication for Respondent as did Dr. Haney. From his observations, the Respondent takes the medication as prescribed. It was also Dr. Gonzalez's opinion that Respondent understands the need for medication. It was the opinion of Dr. Haney that Respondent better understood the need for medication after her second hospitalization in April 1986 then she had after the first hospitalization in 1985. It was the opinion of both Dr. Haney and Dr. Gonzalez that Respondent's mental condition would not prevent her from being effective in the classroom and that her presence as a teacher would not endanger the welfare of the students. Respondent was a concerned teacher, interested in her student's welfare. There is insufficient competent evidence in the record to show that Respondent had emotional outbursts in the presence of her students. There is insufficient competent evidence in the record to show that, due to Respondent's action, the students in her third grade class were deprived of minimum education experiences. Respondent substantially performed her duties as prescribed by law. There is insufficient competent evidence in the record to show that there was a constant or continuing intentional refusal on the part of Respondent to obey a direct order given by proper authority.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Petitioner, School Board of Hernando County, enter a Final Order dismissing all charges filed against the Respondent, Muriel Krueger. It is further RECOMMENDED Respondent be restored to her position as a continuing contract employee of the Hernando County School Board, and that she receive back pay for the entire period she has been in a non-pay status because of these charges. Respectfully submitted and entered this 14th day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2001 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1 and 2. Adopted in Findings of Fact 3, 4, and 7. Adopted in Finding of Fact 10 as clarified. Adopted in Finding of Fact 16 as clarified. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 17 as clarified. Adopted in Finding of Fact 17 as clarified. Adopted in Findings of Fact 11 and 12 as clarified. Adopted in Finding of Fact 20 as clarified. Adopted in Finding of Fact 20. 11-13. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 11, 12 and 13. Adopted in Finding of Fact 14. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraph 15. Adopted in Finding of Fact 23 except for the last clause which is rejected as not supported by substantial competent evidence in the record. 17-19. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 17, 18 and 19. Rejected as not supported by substantial competent evidence in the record, except for the one occasion on March 12, 1986 which would not be described as a chaotic condition. That classroom management was discussed with Respondent is adopted in Findings of Fact 27 and 29. Rejected as not supported by substantial competent evidence in the record. That students took discipline slips and filled them out is adopted in Finding of Fact 24, the balance of paragraph 23 is rejected as not supported by substantial competent evidence in the record. 24-27. Rejected as not supported by substantial competent evidence in the record. There was conflicting testimony in this regard but the more credible evidence was contrary to the facts set forth in paragraphs 24, 25, 26, and 27. Adopted in Findings of Fact 6, 31, 32, 33 and 34. Rejected as not being relevant or material. Rejected as not being relevant or material because that was Dr. Haney's provisional diagnosis which was changed when she made her final diagnosis. The first sentence of paragraph 31 is adopted in Findings of Fact 3 and 4. The balance of paragraph 31 is rejected as not being relevant or material in that although Respondent admitted being acquainted with those school board policies there was credible evidence that Respondent was not aware at the beginning of the school year of Ross' or the Superintendent's specific instruction in regard to maintaining attendance records, grade books, etc. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Findings of Fact 8, 10 and 11. Adopted in Finding of Fact 9 but clarified. Adopted in Finding of Fact 12. Adopted in Finding of Fact 15. Adopted in Finding of Fact 26. Adopted in Finding of Fact 17 but clarified. Rejected as not being relevant or material. Adopted in Finding of Fact 19 but clarified. Adopted in Finding of Fact 20. Adopted in Finding of Fact 18. Adopted in Finding of Fact 21. Adopted in Finding of Fact 13. Adopted in Findings of Fact 20 and 21. 20.-21. Adopted in Finding of Fact 22 as clarified. Rejected as not being a finding of fact but only a restatement of testimony. Adopted in Finding of Fact 24. Adopted in Finding of Fact 22. 25.-26. Adopted in Finding of Fact 23. Adopted in Finding of Fact 25 but clarified. Adopted in Finding of Fact 27 but clarified. Adopted in Findings of Fact 28 and 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30 but clarified. Adopted in Findings of Fact 31 and 32. Adopted in Finding of Fact 31. Adopted in Findings of Fact 31 and 33. Adopted in Findings of Fact 34 and 35 but clarified. Rejected as not being relevant or material. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37 but clarified. Adopted in Finding of Fact 35 but clarified. Adopted in Finding of Fact 5. COPIES FURNISHED: Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 34601 Susan E. Hicks, Esquire Post Office Drawer 520337 Miami, Florida 33152 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32300 James K. Austin, Ed.D. Superintendent of Schools Hernando County 919 U.S. Highway 41 North Brooksville, Florida 33512-2997
The Issue Whether just cause exists to terminate Respondent's employment with the Lake County School Board.
Findings Of Fact The Parties Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Lake County, Florida. At all times relevant hereto, Respondent was employed as a teacher in the School Board's online learning program. Events of March 26, April 11, and April 14, 2014 The first incident giving rise to this proceeding occurred on March 26, 2014, in Mount Dora, Florida. On that occasion, Brandy Herron, a former School Board employee, was shopping with an acquaintance (Kelly Richter) at an Office Depot store. Respondent, accompanied by his 15-year-old daughter, was also present in the establishment. The record reflects that Mrs. Herron and Respondent were no strangers, having worked together——acrimoniously——at the same elementary school from 2007 to 2008. As such, it is not surprising that, upon seeing Respondent in the store, Mrs. Herron noted his presence to Ms. Richter. Regrettably for all involved, Respondent misinterpreted Mrs. Herron's innocent remark to Ms. Richter as a personal affront. Eschewing self-restraint, Respondent approached Mrs. Herron and demanded to know if she was talking about him. Moments later, while gazing at Mrs. Herron's breasts, Respondent uttered, "fakey, fakey, fakey." Predictably, Mrs. Herron asked Respondent to back away. Respondent eventually did so, but not before he told Mrs. Herron that, because he was unwilling to fight a woman, he would instead "beat [her] husband's ass." For good measure, and to the dismay of Mrs. Herron, Respondent repeated his "fakey, fakey, fakey" refrain. On the heels of his encounter with Mrs. Herron, Respondent drove (with his daughter in tow) to Mr. Herron's place of business. Upon his arrival, however, Respondent was informed by a member of Mr. Herron's staff that Mr. Herron was out of the office.1/ The second encounter at issue occurred on the evening of April 11, 2014, on the campus of Lake Tech College ("Lake Tech"), a vocational charter school located in Lake County. At approximately 9:00 p.m., Respondent accompanied two of his minor children to Lake Tech, where Respondent's father-in-law, Jack Miller, is employed as the school's assistant director. It is undisputed that the presence of Respondent and his children at Lake Tech was at the invitation of Mr. Miller, who had arranged for his secretary to notarize certain test registration documents. (Respondent's children were scheduled to take the ACT examination early the next morning.) Per Mr. Miller's instructions, Respondent accompanied his children to an office adjacent to Lake Tech's welding classroom, where a school secretary proceeded to notarize the documents. At that time, a welding class was wrapping up, one of whose students, 21-year-old Ozzie Villafranca, nodded a greeting to Respondent. From this innocent nod, Respondent erroneously concluded that Mr. Villafranca had ogled his 15-year-old daughter. By all accounts, Respondent overlooked this perceived slight (temporarily at least), completed the business at hand, and accompanied his two children to the parking lot. At that point, and without provocation, Respondent returned to the entrance to the welding classroom, where Mr. Villafranca was getting some fresh air. Respondent approached Mr. Villafranca and demanded to know if he had a "problem." Taken aback by Respondent's peculiar conduct, Mr. Villafranca replied that there was no problem. Moments later, Mr. Villafranca's cousin, Eddie Villafranca (also an adult vocational student), joined the encounter, at which time Respondent asked if he, too, had a problem. When Eddie did not respond, Respondent inquired of the cousins, "do you little boys want to get your asses beat?" Fortunately, much of the foregoing incident was witnessed by Mr. Miller, who repeatedly implored Respondent to go home. After three explicit warnings, Respondent returned to the parking lot and drove away. The next incident, which occurred on April 14, 2014, was comparatively less serious. On that occasion, Stephanie Burnett, a School Board employee, was shopping in a Target store when she was approached by Respondent's wife, Sue-Ellen Anselmo. During the brief conversation that ensued, Mrs. Anselmo identified herself to Ms. Burnett, accused Ms. Burnett of trying to destroy her family (by supposedly providing, some years earlier, misinformation to the School Board during an investigation of Respondent), and called Ms. Burnett a "bitch." Mrs. Anselmo then proceeded to walk away, at which point Ms. Burnett, who was rattled by the exchange, began to wheel her shopping cart elsewhere. Moments later, Ms. Burnett encountered Respondent, who, upon seeing her, exclaimed, "I read your statement and you're a liar." Needless to say, the foregoing incidents were reported to and investigated by the School Board. Although one or more of the episodes——particularly the first two——likely would have warranted Respondent's termination, the School Board instead issued a "Level II Written Reprimand." The reprimand, whose relevant content is quoted below, was issued on June 3, 2014, by Dominick Pedata, the School Board's supervisor of employee relations: This Level II reprimand is to put you on notice of your three separate incidents involving your behavior outside of the office. An investigation proceeded regarding these allegations. On March 26, 2014, it was documented by a police report that you harassed one former employee and her husband regarding a prior Lake County Schools investigation that you were involved in. On April 11, 2014, it was reported that you threatened two students at Lake Tech Education Center in the parking lot with physical harm and were asked to leave on several occasions or the police would be called to escort you off the campus. On April 14, 2014, it was documented by a police report that you and your wife threatened a Lake County Schools employee regarding a prior Lake County Schools investigation. These are clear violations [of] Florida Administrative Code [Rule] 6A-10.081 Principles of Professional conduct for the Education Profession in Florida . . . . Moving forward you are not to approach any employee regarding a prior investigation, and/or enter a Lake county School campus and act in an aggressive or harassing manner toward a student. Any similar issues will lead to further disciplinary action up to and including termination. Please let me know if you have any questions. (emphasis added). The foregoing language makes plain that the School Board had completed its investigation regarding the incidents of March 26, April 11, and April 14, 2014, and that Respondent's "Level II Reprimand" constituted formal disciplinary action in connection with those events.2/ Thus, as discussed later in this Order, the School Board is now precluded from terminating Respondent for the same misconduct. Psychological Evaluation As noted previously, the School Board advances an alternative basis for termination, namely, that Respondent is guilty of "incompetency." On this issue, the record reflects that on June 3, 2014, Mr. Pedata directed Respondent to report for a "Medical Fit for Duty Examination" with Dr. Wally Austin, a licensed psychologist. At or around that time, Mr. Pedata furnished Dr. Austin with police reports and other investigative documents relating to the incidents of March 26, April 11, and April 14, 2014. Consistent with Mr. Pedata's directive, Respondent thereafter reported to Dr. Austin's office and submitted to a psychological evaluation. The evaluation, which Dr. Austin conducted on June 24, 2014, comprised three elements: a one- hour interview; the Minnesota Multiphasic Personality Inventory- 2 ("MMPI-2"); and a follow-up interview of approximately 5 to 10 minutes. Dr. Austin concedes that, during the interview, Respondent's speech was "clear, logical, and coherent," and that there was "no evidence of a thought disorder, perceptual disturbance, or psychosis." Nevertheless, Dr. Austin was troubled by the fact that, when pressed about the episodes of March 26, April 11, and April 14, Respondent provided descriptions of the events that varied significantly from the accounts of the other involved parties (as documented in the police reports and other materials provided to Dr. Austin by the School Board). For example, Respondent insisted that he was not present at the Target store on April 14, 2014, and, thus, did not interact with Ms. Burnett on that date. Operating under the premise that Respondent had engaged in "grossly inappropriate behavior" during the episodes of March 26, April 11, and April 14,3/ Dr. Austin thought it prudent to "get objective information." To that end, Dr. Austin administered the MMPI-2, a widely-used, standardized test of adult personality. Unfortunately, Respondent's answers to the MMPI-2 resulted in a high "lie" (or "L") scale (one of the test's three "validity" scales) that rendered the entire evaluation invalid. As Dr. Austin explained, a high L scale typically occurs when test takers attempt to depict themselves as unrealistically virtuous. Notably, however, Dr. Austin equivocated whether the high "L scale" resulted from conscious behavior on Respondent's part. At one point, for example, Dr. Austin testified that Respondent "had the ability to answer [] in a more forthright manner."4/ Later, though, Dr. Austin credibly opined that Respondent believed in the truthfulness of his test responses: Well, that's the part we didn't get into. He faked it – when I say "faked it good," there is [sic] other scales that indicate that John believes what he is saying. So for him, he is not faking it. * * * [B]ecause by [the L scale] being so high, it invalidates the report because it lowered all of the other scores. And the psychopathology would come up, but you don't know what it is because he denies everything. But it is not a conscious denial, he believes what he believes. Pet'r Ex. 10, p. 68:5-9; 68:23-69:3 (emphasis added). Upon the completion of the MMPI-2, Dr. Austin conducted a brief follow-up interview with Respondent, at which point the evaluation concluded. The following day, on June 25, 2014, Dr. Austin notified the School Board that, in his view, Respondent was "not fit to return to work in the school system." A charging document soon followed, wherein the School Board alleged that Respondent is guilty of incompetency: Based on the results of the medical fit for duty you are also charged with "Incompetency." Under F.A.C. 6A-5.056(3), Incompetency is the "inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." Inefficiency under 6A- 5.056(3)(a)2 is "Failure to communicate appropriately with and relate to students[,]" and 6A-5.056(3)(a) is "Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents." Incapacity under 6A- 5.056(3)(b)1 is "Lack of emotional stability." Your actions clearly reflect incompetency in this regard. Pet'r Ex. 17. In its Proposed Recommended Order, the School Board reiterates its position that Dr. Austin's findings and/or the incidents of March 26, April 11, and April 14, 2014, demonstrate Respondent's incompetency. For the reasons explicated below, the undersigned is not so persuaded. First, the School Board is precluded from basing the incompetency charge upon the episodes for which Respondent was previously reprimanded. The psychological evaluation likewise cannot support the incompetency charge, as it is evident that Dr. Austin's opinion was informed almost exclusively by Respondent's previously-punished misconduct. Consider the following exchanges between Dr. Austin and School Board counsel: Q. Okay. And what are those duties, just in your own words, that you would expect for a teacher who is, in fact, fit for duty to perform? A. I think the question is very broad. Because I would like to answer it by ruling out what I don't expect. Q. Okay. A. I don't expect there to be threats of violence to hit other students – to hit students where the teachers now are starting to get violent with the kids, or young men, students of the county. Or I don't expect teachers or adults to conduct themselves inappropriately in the school setting or in public to the point that you were going down the street to fair it out with someone's husband. You know, those kinds of things, I don't think that is becoming of a school teacher. * * * A. All right. I am not assessing his ability to teach. I am assessing: Is he fit to be in the room. Q. Correct. A. I am looking at an individual who has had five episodes of grossly inappropriate behavior: The Triangle School thing one, the Home [sic] Depot lady, the flirting, the technical school, the Target. He has had inappropriate behavior in multiple settings; in the school setting, in the public with the school teachers; he is going over to people's work environments. His inappropriate behavior has involved teachers, it has involved students, it has involved administrators. He has been called on the carpet and had consequences of police reports filed on him, changes in school, three-days [sic] suspension. And it keeps going on and on . . . . If a person has done something twice, three times, four times they are very likely to do that behavior again. What faith do I have that [Respondent] is not going to threaten violence to teachers or to students when he leaves my office . . . ? Pet'r Ex. 10, p. 35:7-22; p. 36:3-8. The only reasonable interpretation of the foregoing testimony is that Respondent's earlier misdeeds were a necessary component of Dr. Austin's opinion. At bottom, then, the School Board is attempting to accomplish indirectly (i.e., terminate Respondent by channeling his previously-punished misconduct through an expert, who opines that the misconduct demonstrates unfitness) what it cannot do directly (i.e., terminate Respondent for the previously-punished misconduct). As noted shortly, basic due process precludes such an outcome. Moreover, and in any event, Dr. Austin's evaluation, which comprised a single office visit, was insufficiently comprehensive to evaluate properly Respondent's fitness to carry out his required duties. On this point, the undersigned credits the testimony of Respondent's expert witness, Dr. DeLeon, who opined that an appropriate evaluation would necessarily include multiple office visits over a period of time.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order: dismissing the charges brought against Respondent in this proceeding; and awarding Respondent any lost pay and benefits. DONE AND ENTERED this 26th day of March, 2015, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 26th day of March, 2015.
Findings Of Fact Mary L. Baxter has been employed by the Polk County School Board for approximately 14 years, first as a classroom teacher, then as assistant principal, and in 1984 she was appointed as principal of John Cox Elementary School in Lakeland. While assigned to John Cox Elementary School, Petitioner was issued an annual contract for eleven months (Exhibit 5). Neriah E. Roberts is the Northwest Area Superintendent of Polk County Schools and was in that position at all times here relevant. As Northwest Area Superintendent, Dr. Roberts was Petitioner's immediate supervisor and supervised seventeen additional principals of the Polk County School System. Functions of the area superintendent include acting as liaison between the communities and the schools in his area responsibility, assisting the principals in obtaining funding for maintenance and other school activities and overseeing the performance of these principals. As Petitioner's immediate supervisor, Dr. Roberts prepared Petitioner's performance evaluation. In his first annual evaluation of Petitioner's performance (Exhibit 4), Dr. Roberts reported that Petitioner met performance standards. However, two of those blocks contained comments regarding performance by Petitioner that needed to be improved. Under "Student Services," Dr. Roberts commented that Petitioner should reassess her disciplinary procedures. Dr. Roberts had received complaints from parents of children at John Cox Elementary School indicating Petitioner was paddling an excessive number of pupils. When he checked the discipline records with Petitioner, he found some 97 pupils had been paddled during that school year. That discovery lead to Dr. Robert's comments. Under "Management" on the evaluation, Dr. Roberts commented that Petitioner should open lines of communication between her staff and her assistant principal. Dr. Roberts had received comments from teachers at John Cox that Petitioner was short tempered and was not popular with members of her instructional staff. On one occasion while Petitioner was principal at John Cox, Dr. Roberts met with the staff at John Cox at which meeting five or six teachers commented unfavorably on Petitioner's relations with her staff. Such reports formed the basis of these comments by Dr. Roberts above noted. In addition to placing the two comments on the March 25, 1985 evaluation, Dr. Roberts submitted a letter to Petitioner dated March 27, 1985 (Exhibit 6) in which he elaborated on the comments placed on the evaluation. Dr. Roberts held another conference with Petitioner on August 14, 1985, which he memorialized in a letter to Petitioner dated August 23, 1985, (Exhibit 7). In this letter, he referred to his March 27, 1985, letter and stated that letter was intended to substitute for a more formal professional development plan. In the evaluation of Petitioner dated March 3, 1986, Dr. Roberts reports that Petitioner successfully met minimum standards in all sections of the evaluation. However, in Section 1, comments are made that "Improvement has been made in leadership style, but this does not preclude the need for continued improvement." Under Item 11 on this evaluation, the comment appears that "Your flexibility and adjustment to this community and students has been good. Due to the inability to read the dates on some of the evaluations contained in Exhibit 4, it is impossible to tell which evaluation was for the second year and which is for the third year Petitioner was principal at John Knox. From Dr. Roberts' testimony, it appears that the evaluation for the second year is included in Exhibit 6, and the evaluation reports in Exhibit 4 in which the date is not legible was for her third year at John Cox. At the expiration of Petitioner's three years as principal at John Cox, she became eligible for a multi-year contract, and Dr. Roberts recommended her for such a contract. When this recommendation reached the superintendent's office, Donald R. Cox, Assistant Superintendent for Personnel, noted that the recommendation was inconsistent with school board policy and contacted Dr. Roberts to remind him of the policy that before administrative personnel can be given a multi-year contract, their performance evaluations must be totally satisfactory in each category on the evaluation report for the three years preceding the awarding of a multi-year contract. Dr. Roberts then contacted Petitioner by phone to tell her she would not receive a multi-year contract. Petitioner was quite upset during this conversation and indicated to Dr. Roberts that she would resign. She was requested to put her resignation in writing. This conversation occurred near the end of the week, and the following work day (either Friday or Monday) Dr. Roberts and Dr. Cox met with the superintendent. During this meeting, the status of Petitioner was brought up, and Dr. Roberts told the superintendent that Petitioner had indicated she would resign. Shortly thereafter on January 12, 1987, the superintendent of schools submitted a letter to Petitioner (Exhibit 5), accepting her verbal resignation as principal at John Cox Elementary School and advising her that she would be reassigned to the first available vacancy as assistant principal. By letter dated June 15, 1987 (Exhibit 10), Petitioner indicated she had not resigned and that the charges against her were based on information she had been given no opportunity to challenge or rebut. The superintendent then authorized Dr. Cox to set up a meeting with Petitioner and Dr. Roberts to try and resolve the differences. At this time, it was clear that no valid resignation had been submitted by Petitioner, and this was no longer an avenue to be pursued by the school board. Dr. Cox was authorized by the superintendent to offer Petitioner continued employment as principal of John Cox Elementary School, a transfer to another school as assistant principal at no reduction in salary or a return to professional status as instructional personnel. A meeting was scheduled and held shortly after June 15, 1987 between Roberts, Cox and Petitioner at which Cox offered the above noted alternatives to Petitioner. Petitioner then stated she did not want to remain at John Cox, but would like a lateral transfer to another school as principal. Cox was not authorized to approve the lateral transfer requested by Petitioner and told her he would relay that request to the superintendent and advise Petitioner. When Dr. Cox presented this proposal to the superintendent, the latter indicated he would refuse to recommend to the school board that Petitioner be employed at any other school to a position higher than assistant principal. Cox relayed this information back to Petitioner, and she was subsequently assigned as assistant principal at North Lakeland Elementary School at the same salary she had received as principal at John Cox. Petitioner subsequently requested the hearing to challenge this action, and these proceedings followed.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent Phillip James is certified by the Florida Department of Education to teach in the area of mental retardation, and is employed under continuing contract with the petitioner Pinellas County School Board. He has been teaching for approximately nine years. The Paul B. Stevens Exceptional Student Center has various grade levels for educably mentally handicapped students (those with an IQ level ranging between 55 and 68), trainable mentally handicapped students (IQ range between 25 and 55), and profoundly mentally handicapped students (IQ range between O and 25). During the 1981-82 school year, respondent taught in the grade level for students classified as educably mentally handicapped. For the 1982-83 school year, he was assigned to a class containing seven profoundly mentally handicapped students. Howie, one of the students in respondent's class, cannot speak intelligibly, read, write or go to the bathroom by himself. While it is difficult to get Howie to show any response to outside stimuli, he is not difficult to control and is not considered dangerous. On one occasion, respondent was working with Howie attempting to get him to put pegs in the holes of a pegboard. When Howie did not perform the task, respondent took ahold of Howie's hair on his head and yanked his head back by the hair. Howie responded by whimpering, or crying. On another occasion, respondent performed this same "technique" in front of another teacher to illustrate that he was able to get a response from Howie by pulling his hair. Respondent admitted that he did, in fact, pull Howie's hair on several occasions as an aversive therapy technique to elicit response from him. Respondent did not attempt to obtain approval from school authorities prior to initiating such a technique. Student Pam wears a diaper and is often difficult to change. On one occasion, the respondent's teacher's aides were having trouble holding Pam on the changing table, and asked respondent to help them. Respondent came over to the table and tapped Pam lightly on the mouth. Pam's mouth began to bleed. One teacher's aide testified that the tap to the mouth which she observed was not hard enough to cause bleeding, but that respondent told her that he had hit Pam in the mouth earlier. Respondent explained that while he was holding Pam's hands, she was trying to get away from him and pulled his hands toward her mouth in a forceful manner. Student Andrea is in a wheelchair, wears diapers and cannot speak, read or write. She has a self-abusive habit of placing her little finger into her eye socket behind her eyeball, causing her eyeball to bulge out. In order to discourage this behavior, respondent struck Andrea's arm while she was poking her eye so as to drive her finger deeper into her eye socket. It was anticipated by the respondent that this procedure would cause Andrea pain and that she would then voluntarily withdraw her finger from her eye. Respondent had not attempted to obtain prior permission from school officials to modify Andrea's behavior by this method. Student Della is confined to a wheelchair, cannot read, write or speak and wears diapers. She exhibits extreme sensitivity to tactile stimulation. On one occasion, when changing Della's diapers, respondent took the masking tape with which the diapers are secured and pressed it down on Della's leg, which was covered with long, fine hair. Respondent then ripped the tape off Della's leg, causing her to flinch. Respondent admitted that he did stick tape on Della's leg and then pulled it off, but explained that he did this to "desensitize" her. No prior authorization was requested or obtained for this procedure. Appropriate methods of managing student behavior at the Paul B. Stevens Exceptional Education Center were explained to teachers in staff meetings. While aversive therapy is permitted, the appropriate manner of implementation is to begin with the least restrictive method of placing the student in a "time out" room to reduce inappropriate behavior. This is the maximum amount of restraint authorized, absent a written behavior plan for the individual student. Such an individual behavior management plan must receive prior approval from either the school's Principal or Behavioral Specialist after observation of the student and input from various sources other than the teacher seeking to initiate the plan. Respondent was aware of this school policy.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent Phi1lip James be found guilty of misconduct in office and gross insubordination and that he be dismissed, effective October 28, 1982, as a member of the instructional staff of the School Board of Pinellas County. Respectfully submitted and entered this 31st day of March, 1983, 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 31st day of March, 1983. COPIES FURNISHED: Usher L. Brown, Esquire Associate General counsel P. O. Box 4688 Clearwater, Florida 33518 Lawrence D. Black, Esquire 152 Eighth Avenue SW Largo, Florida 33540 Mr. Scott N. Rose Superintendent School Board of Pinellas County, Florida 1960 East Druid Road P. O. Box 4688 Clearwater, Florida 33518
The Issue Whether or not Respondent should be assigned to J.R.E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Anya Cooper and Aaron Brumm and had admitted Exhibits P-1 (two pages of subpoena), P-2 (case management form 676566), P-3 (composite of Student Observation 1/12/87), P-4 (Composite Student Case Management Referral Forms), P-5 (Second Report for School Year 1986-1987), P-6 (Composite of Student Academic and Behavioral Reports), and P-7 (Individualized Education Program, IEP). Respondent presented the oral testimony of Fred Sage and had admitted R-1 (Computer printout), R-2 (Computer printout), R-3 (Child Study Team Conference Notes), and R-4 (composite of report card with progress notes of Grace Baptist Academy). Joint Exhibit A (Multi- Disciplinary Team Report) was also admitted. Due to the failure of Bonnie Edison to respond to a validly served subpoena, the parties stipulated to the taking and filing of her deposition by Petitioner subsequent to July 21, 1987. Respondent's father's August 22, 1987, letter has been treated as a Motion to Strike or Amend the Edison deposition, and the Edison deposition with attached exhibits has been admitted as amended by the Order of September 10, 1987. Petitioner filed a "Memorandum of Law on Jurisdiction, Substantial Interest, and Case or Controversy," and Respondent filed a letter styled, "Request for Ruling." These documents are addressed the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Respondent's parents were notified by a letter dated January 30, 1987, that Respondent had been administratively assigned to the Dade County School Board's alternative education program at J.R.E. Lee Opportunity School. Being previously aware that the recommendation for administrative assignment had been made, Respondent's parents had formally withdrawn Respondent from the public school effective January 29, 1987, and timely petitioned for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Respondent's parents are currently complying with State law by continuing their son in a private educational facility, however Respondent's substantial interest entitling him to a formal hearing continues to exist in that the parents desire their son to be enrolled in the regular program of the Dade County public school system and in that they propose to re-enroll him in that system if they prevail in these proceedings. At all times prior to his withdrawal from public school, Respondent was enrolled at Cutler Ridge Junior High School, located in Dade County, Florida. He attended summer school in the summer of 1986, and was 13 years old and in the seventh grade for the regular 1986-1987 school year. During the regular 1986-1987 school year, Anya Cooper was Respondent's mathematics teacher. In her class, Respondent performed his basic skill work below grade level. She described his conduct in her class as very "fidgety, constantly moving around, bothering other students, and talking and kicking purses." However, she also described the foregoing behavior as all done "in fun" and described Respondent's usual responses to admonishment as being, "Okay, Okay." Apparently she interpreted these responses to her correction as being in the nature of back-talk but admitted that following a smart retort, Respondent usually would not say more beyond "Okay" and often complied with her requests. Beginning September 22, 1986, Ms. Cooper kept a daily record of negative behaviors of Respondent. That day, Respondent was extremely talkative and refused to participate in boardwork. He also lied, saying a paper without a name on it which had received a grade of "B" was his own paper when, in fact, it had been submitted by someone else. When confronted with his lie, Respondent admitted the lie immediately. On September 24, he was too talkative and changed his seat. On September 26, he talked during a test and refused twice to take the test before actually taking it. On September 30, he chewed gum and was required to remove it. On an occasion in early October, he talked back to Ms. Cooper and was instructed not to talk in class anymore. On October 22, he threw a piece of staple which hit another student. Ms. Cooper counselled with Respondent about the danger of throwing staples, but Respondent interrupted her and refused to work. On October 23, Respondent kicked a female student, and on October 28, he put his foot on her arm. Ms. Cooper put him out of her class. There is no evidence that any student was ever injured. On October 27, Respondent refused to work and talked during the entire class period. Later that month, he threw a pen into the trash can, creating a loud noise and distraction. Nonetheless, despite the number of these incidents, Ms. Cooper only referred Respondent for discipline by the school administration one time. During summer school the previous summer, the Respondent had been referred by the coach to Assistant Principal Brumm for running around the cafeteria. Respondent was reprimanded and warned without being assigned to indoor or outdoor suspension. On July 22, 1986, also during summer school, Respondent had been referred to the office for disruptive and non-attentive behavior in one class. Assistant Principal Brumm sent Respondent home for one-half day as a disciplinary measure. By October 6, 1986, Respondent was in the Student-At-Risk-Program (SARP). This program assembles a special group of teachers within the school who are able to deal particularly effectively with disciplinary problems. The student members of the program are assigned their own counsellor and attend classes of much smaller size than do those students in the academic mainstream. The target goal of SARP is to identify students at risk for dropping out of school and modify their behavior so as to retain them in the school system. The testimony of Bonnie Edison, Respondent's seventh grade SARP life science teacher for the regular 1986-1987 school year, was submitted by after- filed deposition. Ms. Edison did not routinely refer Respondent to the administration for his discipline problems, nor did she involve the SARP counsellor. She addressed Respondent's disruptive behavior solely with SARP behavior modification techniques. In Ms. Edison's class, Respondent was "off task" and disruptive seventy to eighty percent of the time unless Ms. Edison addressed him on a one-to-one basis, or unless she included him in a group of no more than three students. Despite measurably high ability, Respondent's work effort was below standard ninety percent of the time. He consistently failed to bring proper materials to class but admitted he should do so. Ms. Edison counselled with Respondent a few minutes daily and occasionally for longer periods, sometimes with temporary success, but never with lasting success. Her greatest concern was that Respondent's need for one-on-one attention deprived her of teaching time and limited her time for other students. She also was concerned because, in their conversations, Respondent could name no rewards or goals she could integrate into her program at school. Nonetheless, noting that Respondent related better to plants than to people, and recognizing his very superior ability with horticulture, Ms. Edison involved him in independent study with plants as a reward. She also devised a reward system based upon Respondent's interest in wrestling as a contact sport, and upon his affection and respect for the wrestling coach who had previously referred Respondent for discipline. This coach helped Respondent study for his second grading period exam in Ms. Edison's class, and Respondent earned an "A" on this final exam. Between September 1986 and the end of January 1987, Respondent had a total of seven referrals to the school administration, although some referrals covered several incidents. The constant theme of the referrals of Respondent to the administration was that Respondent had the ability to learn, but insufficient self-discipline to allow him to learn. Respondent had been assigned to six days of CSI (indoor suspension) and one day of outdoor suspension. In the first grading period of the regular 1986-1987 school year, Respondent earned two F's, one D, two C's and one B. By January 29, 1987, in the second grading period, Respondent had earned two F's, two D's and two C's. In the second grading period, he had only been absent 2 or 3 times in each class except for math, in which he had 8 absences. There is no evidence that any teacher or administrator viewed these absences as excessive. On January 20, 1987, a teacher referred Respondent for disrupting other students in CSI by making squeaking sounds. Thereafter, a Child Study Team was convened. Each of Respondent' a teachers participated in a conference with Respondent's mother on January 28, 1987. The consensus of the team and teachers was that Respondent needed extremely close supervision. Each teacher consulted with Respondent's mother on this occasion. Although there is evidence of some parental contact due to previous disciplinary problems, it appears that January 28, 1987, when the alternative education program was being actively explored, was the first time the parents were made aware of the serious penalties attendant upon Respondent's grades, behavior, and absences. The probable explanation for the lack of prior communication is that Respondent never gave contact slips/reports to his parents, but it is also clear that there was little or no administrative follow-up on the written material sent home and that the parents also resented and reacted hostilely to two oral contacts by the administration. Mr. Brumm opined that all disciplinary and counselling techniques at his disposal had been tried but had proven ineffectual. It was Respondent's parents' position that the school had failed to adequately communicate with them concerning their son's disinterested and disruptive behavior; had failed to involve them early enough in disciplinary and academic correction of their son; and had failed to use corporal punishment to discipline Respondent. To buttress their assertion that the school had failed to adequately communicate with them, the parents asserted that since certain disciplinary reports/referrals had not been committed to writing or consigned to the computer prior to the administrative school assignment (January 30, 1987) or prior to the formal withdrawal of their son from the Dade County School System (January 29, 1987), there was little or no credibility in any of the disciplinary reports/referrals admitted in evidence and particularly no credibility in those reports/referrals dated February 6, 1987, and later. The failure of teachers and administrators to timely commit to writing the reports does not diminish the credibility of the oral testimony on the same facts by the teachers and Mr. Brumm. It does, however, render less credible the administration's assertion that adequate communication was made with the parents simultaneously with the alleged disciplinary actions. The parents' assertion that the school failed to use corporal punishment as an accepted disciplinary technique is ill-founded. The administration's failure to employ corporal punishment was consistent with established policy, and not demonstrated to be unreasonable. Respondent's exhibits of report cards and progress reports from the private school which he entered subsequent to withdrawal from the Dade County Public School System are irrelevant to the statutory issues discussed in the conclusions of law. They are also virtually unintelligible without any "key" by which they may be interpreted.
