The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the only disputed issues concern whether the Petitioner is a small business party and whether the Respondent was substantially justified in bringing the underlying proceeding.
Findings Of Fact The findings of fact which follow are based on “the pleadings and supporting documents, and the files and records of the Division of Administrative Hearings.” See Rule 60Q-2.035(7), Florida Administrative Code.1 In DOAH Case No. 96-4290, the Commissioner of Education filed an Administrative Complaint against Mr. Brown. By means of that Administrative Complaint, the Commissioner sought to take disciplinary action against Mr. Brown on the basis of allegations of misconduct by Mr. Brown in connection with his employment as a coach with the Dade County School System. An investigation was conducted prior to filing the Administrative Complaint and at the time the Administrative Complaint was filed, the agency had in its possession affidavits and other evidence which, if believed, were sufficient to establish the charges alleged in the Administrative Complaint. Prior to filing the Administrative Complaint, the evidence collected during the investigation was reviewed by agency legal counsel for the purpose of determining whether there was probable cause to file an Administrative Complaint. Upon review, the evidence appeared to be sufficient to warrant the issuance of an Administrative Complaint. Following discovery in the underlying case, the agency re-evaluated its position and, on the advice of counsel, decided to file a voluntary dismissal of the Administrative Complaint. The decision to dismiss the Administrative Complaint was based on the fact that, following discovery, the agency had serious doubts that it could prove its case by the required “clear and convincing” standard. At the time of the filing of the Administrative Complaint, Mr. Brown was the sole proprietor of an unincorporated business. His principal office was in this state. He was domiciled in this state. He had fewer than twenty-five employees and a new worth of less than two million dollars. At the time of the filing of the Administrative Complaint, Mr. Brown was not an employee of the Dade County Public School System. Rather, he was performing part-time coaching services essentially as an independent contractor.
The Issue The issue in the case is whether the Respondent completed the applicable probationary period while employed as a teacher with the Polk County School System.
Findings Of Fact The Respondent was employed as an eighth grade teacher at Boone Middle School from the beginning of the 1998-1999 school year until October 6, 1998. The Boone Middle School principal and an assigned peer teacher observed the Respondent’s teaching techniques. The observers had certain concerns related to the Respondent’s methods, and on October 2, 1998, the principal met with the Petitioner to discuss the concerns. A second conference was scheduled for October 6, 1998. When the Petitioner arrived at the conference, she announced that she was resigning her employment. At the time of the resignation, the Respondent was asked to submit a written resignation. Although the written resignation was never received, on October 12, 1998, the Respondent turned in her grade book and other documents. By statute, a teacher employed under an "initial annual contract" must complete a 97-work day probationary period, during which time the employment may be terminated without cause and the teacher may resign without being in breach of the employment contract. The Respondent was employed at Boone Middle School for 47 days. She did not complete the probationary period. The Respondent asserts that she did not resign from Boone Middle School, but transferred from Boone Middle School to Cypress Lake Middle School. The evidence fails to establish that a transfer took place. Polk County School Board policy requires that the principals of the employing schools approve teacher transfers. There is no evidence that either the Boone Middle School or the Cypress Lake Middle School principals approved of an official transfer between the schools. There is no evidence that the Boone Middle School principal was aware of the Respondent’s intention to leave until October 6, 1998, when the Respondent announced her resignation from employment. At the hearing, the Boone principal testified that, given the difficulty in hiring math teachers, she would not have approved a transfer in the middle of the school term. The Respondent asserts that she took October 7, 1998, as pre-approved leave time. There is no credible evidence that October 7, 1998, was approved for the Respondent as a personal leave day by any appropriate authority. She had resigned her employment from Boone Middle School, and had not begun her employment at Crystal Lake Middle School. It is unclear as to which employer would have approved a request for leave. The Respondent began employment at Crystal Lake Middle School on October 8, 1998. The Petitioner worked at Crystal Lake until February 12, 1999. After the first grading period was completed, Crystal Lake administrators were concerned about the number of failing grades the Respondent had assigned to her students. Crystal Lake administrators met with the Respondent and asked that she reconsider the grading scale. On February 1, 1999, the Respondent submitted her resignation to Crystal Lake administrators. The Respondent was employed at Crystal Lake Middle School for 82 days. She did not complete the probationary period. Following her resignation from Crystal Lake, she occasionally worked as a substitute teacher. The Respondent was employed at Bartow High School at the beginning of the 1999-2000 school year. She taught nutrition and wellness courses. She was assigned a peer teacher. After classes began, the Bartow High School principal began to receive complaints from students, parents, and others regarding the Respondent’s teaching performance. Based upon the complaints, the principal terminated the Respondent’s employment effective September 28, 1999. The Respondent was employed at Bartow High School for 42 days. She did not complete the probationary period. The Respondent asserts that her employment at Bartow High School was as a "re-appointee" not under an "initial contract," that the probationary period is inapplicable, and that she may not be terminated without cause. The Respondent testified that an employee of the Polk County School Board personnel department told her upon her employment at Bartow High School that she would be considered a "re-appointee." The Respondent was unable to specifically identify which employee allegedly provided the information; however, employees of the personnel office testified that they did not recall speaking to the Respondent about this issue, but further testified that Respondent’s recollection is contrary to school board policy. The employees testified that a teacher, once resigned, who later returns to employment, is treated as a "new" employee and receives an "initial" annual contract. The board policy was further confirmed by the testimony of the Petitioner’s director of employee relations. The Respondent asserts that she was not in fact treated as a new teacher, in that she was not required to complete a new employment application and was not asked to provide fingerprints or medical documents which are required of a new hire. The personnel department employees testified that generally it is not necessary for a person in the Respondent’s position to resubmit such materials when those already on file are of recent vintage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Polk County enter a Final Order terminating the employment of Rita Clarkson. DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2000. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP 245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831-4620 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Mr. Glenn Reynolds School Board of Polk County 1915 South Floral Avenue Bartow, Florida 33830-0391 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner, Bay County School Board (School Board), had just cause under Subsection 1012.67, Florida Statutes (2008), to terminate the employment of Respondent, Thomas Walker, because of his absence without leave.
Findings Of Fact Respondent is employed under a Professional Services Contract and teaches at Bozeman School in Bay County. Respondent, without approval or notice to the administrator or staff of Bozeman School, failed to appear for his teaching assignment in the latter part of November 2008. After repeated attempts to reach Respondent, Dr. Tommye Lou Richardson, Director of Human Resources for Bay District Schools, ascertained that Respondent was incarcerated in the Coffee County Jail in New Brockton, Alabama, for his failure to pay child support. Respondent's absence was willful and without approved leave.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating the employment of Respondent and finding that he has forfeited any compensation since January 14, 2009, the date of his suspension without pay by the School Board. DONE AND ENTERED this 18th day of May, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 18th day of May, 2009. COPIES FURNISHED: Franklin R. Harrison, Esquire Harrison, Sale, McCloy Duncan & Jackson Post Office Drawer 1579 Panama City, Florida 32402-1579 J. E. Sawyer, Esquire 203 South Edward Street Enterprise, Alabama 36330 Thomas Walker 26802 Highway 69A, North Altha, Florida 32421 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 William V. Husfelt, Superintendent Bay County School Board 1311 Balboa Avenue Panama City, Florida 32401-2080
The Issue Whether the Respondent should be dismissed from employment as an instructional employee of the Respondent, School Board of Lake County, Florida ("School Board"), or, to otherwise determine the terms under which the Respondent may be reinstated as an instructional employee by the School Board. The charges are based upon the acts and violations alleged in the Superintendent's letter of August 21, 1989 and Amendment to Charges dated July 12, 1990. Case No. 90-4382 Whether the Respondent's teaching certificate should be revoked or otherwise disciplined for violation of Section 231.28(1)(c) and (f), Florida Statutes.
Findings Of Fact The School Board of Lake county, Florida pursuant to Sect. 120.57(1)(b)10, Fla. Stat., which precludes the agency from rejecting or modifying the Findings of Fact made by the Hearing officer, unless the agency finds that the Findings of Fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law, adopts the findings of fact made by the Hearing Officer. The School Board of Lake County, Florida hereby rejects the Hearing Officer's Conclusions of Law that the petitioner was not guilty of immorality, was not incompetent by reason of incapacity and did not commit misconduct in office. The School Board of Lake County, Florida finds that although the Findings of Fact support a conclusion of drunkenness, the findings do not rise to the level of public drunkenness as is required for termination under Sect. 231.36, Fla. Stat. The School Board of Lake County, Florida therefore substitutes its conclusions of law as follows: That the respondent, Sarah I. Clark, giving con- sideration to Fla. Admin. Code Rule 6B-1.001(3) and Rule 6B-4.009(1)(b)(1) is incompetent due to incapacity, due to lack of emotional stability. That the respondent, Sarah I. Clark, has engaged im- morality in that respondent's conduct in urinating on her husband in the course of performance of a sexual act involves a sexual act which is deemed a violation of the law of Florida, notwithstanding the fact that the act was engaged in by the mutual consent of the parties thereto; and that the respondent's publication of that event to members of the Lake County Sheriff's Department and a resident in her home, Mr. William Rutland, and the resulting investigation by the Department of Health and Rehabilitative Services constitutes conduct sufficiently notorious to bring the individual concern or the education profession into public disgrace or disrespect to the end that the individual's service in the community is impaired. That the respondent, Sarah I. Clark, is guilty of misconduct in office for violation of the code of Ethics of the Education Profession as adopted in Fla. Admin. Code Rule 6B-1.001(3). For reference a copy of the Hearing Officer's Recommended Order is attached hereto. RULING ON EXCEPTIONS TO THE HEARING OFFICER'S RECOMMENDED ORDER Upon consideration of petitioner's exceptions to Hearing Officer's Recommended Order as served on March 1, 1991 and respondent's exceptions to the Recommended Order as served February 22, 1991, said exceptions be and the same are hereby denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that: The Board take no action to discharge Respondent and condition her employment upon regular continued participation in Alcoholics Anonymous; and The EPC drop its charges against the Respondent and dismiss this case. DONE AND ENTERED this 6th day of February, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 89-5247 AND 90-4382 Petitioner, Betty Castor's Proposed Findings of Fact: 1-6. Adopted. 7. Irrelevant. 8-9. Adopted but restated. 10-23. Adopted. 24. Rejected. See paragraph 20(FA) of Respondent's Proposed Recommended Order. 25-32. Restated in Respondent's Proposed Recommended Order, paragraph 20(B)-40. 33-37. Rejected, credibility of Rutland. 38-40. Adopted but restated as in Respondent's Proposed Recommended Order, paragraphs 33-37. 41-48. Rejected, as contrary to the more credible testimony. 49-52. Irrelevant. 53-56. Rejected, as contrary to the more credible testimony. Adopted. Adopted in part, rejected in part, as irrelevant. 59-61. Deleted from Proposed Recommended Order. 62-67. Adopted and rewritten, see Respondent's Proposed Recommended Order, paragraphs 41-43. 68-70. Irrelevant. Petitioner, School Board's Proposed Findings of Fact: 1-3. Adopted. 4-18. Adopted, generally, but restated as proposed in Petitioner, Castor's Proposed Recommended Order, paragraphs 3-23. 19-23. Adopted, generally, but restated as proposed by Respondent in the two paragraphs 20 on page 8 of Respondent's Proposed Recommended Order and paragraph 25 of Petitioner, Castor's Proposed Recommended Order. 24-58. The facts based upon Rutland's testimony are rejected. The facts as restated in Respondent's proposed Recommended Order, paragraphs 21-40 are accepted as being a more accurate statement of the facts revealed in the record. 59-70. Rejected, as contrary to the more credible evidence in the record. Respondent's Proposed Findings of Fact: 1-2. Irrelevant. Irrelevant. Added to Conclusions of Law as last paragraph. 5-50. Adopted, generally, and summarized. Those findings which were deleted were deemed irrelevant. COPIES FURNISHED: Thomas E. Sanders, Superintendent Lake County School Board 201 W. Burleigh Boulevard Tavares, FL 32778 Martin B. Schapp, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400 Ms. Karen Barr Wilde Executive Director 301 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400 Stephen W. Johnson, Esq. MCLIN, BUPNSED, ET AL. 1000 West Main Street P.O. Box 491357 Leesburg, FL 34749-1357 Stephen C. Willis, Esq. BROOKS & LEBOEUF 863 East Park Avenue Tallahassee, FL 32301 Sally C. Gertz, Esq. Florida Education Association/United 118 North Monroe Street Tallahassee, FL 32399-1700
The Issue Whether Respondent's performance as Principal at Lake Vista Elementary School was less than satisfactory so as to warrant his transfer to Kathleen Junior High School as Assistant Principal.
Findings Of Fact At all times relevant hereto, Ferris A. French (French or Respondent), was employed by the Polk County School Board as a Principal under a multi-year contract. He has been certified as a Principal. Multi-year contracts for administrative personnel first came into being in 1985. At that time, French was employed as Principal of Lake Alfred Elementary School through the school year 1984-85. For the school year 1985-86, Respondent was transferred to Principal of Lena Vista Elementary School, and he was given a multi-year (three years) contract for the school years 1985-86, 1986-87 and 1987-88. (Exhibit 2) During his last year at Lake Alfred Elementary, one of the teachers at the school complained to the Superintendent that Respondent had made unwanted sexual advances. Respondent was directed to report to the Superintendent's office to face the complaining teacher. Respondent adamantly denied the accusations, and requested an investigation by the Professional Practices Council. No further action was taken in this matter. Shortly thereafter, an opening appeared for Principal at Lena Vista Elementary School, and Respondent requested a transfer to Lena Vista because it was a larger school. In accordance with this request, Respondent was transferred to Lena Vista. Upon completion of the three-year, multi-year contract for the school year 1987-88, Respondent was recommended for a three year renewal of his multi- year contract to commence the school year 1988-89 (Exhibit 3). Due to administrative oversight this contract was not issued until October 31, 1989 (Exhibit 15). During the 1986-87 school year, Susan Kelly was hired as a part-time teacher's aide and part-time secretary at Lena Vista by Respondent. During the school year 1987-88, Lena Vista was authorized another full time secretary, and Susan Kelly was employed in this position. It became apparent that Respondent and Kelly were often gone from the school about the same time during the lunch period, and rumors of a romantic liaison between French and Kelly became rife. The superintendent's office received one or more anonymous telephone call alleging improper conduct on the part of Respondent and Kelly. Around the same time Respondent was having marital difficulties and separated from his wife. He then filed for divorce. Kelly also dissolved her marriage through divorce. At the direction of the superintendent, William Boykin, Deputy Superintendent, met with the Respondent to discuss the allegations of impropriety made in the anonymous calls, and Respondent denied the truth of the allegations. On another occasion, Bill Moore, an Area Superintendent in charge of the area which included Lena Vista, discussed the rumors with Respondent, who again denied any improprieties. Following their respective divorces, French and Kelly started dating. Because of the rumors, Kelly began looking for another job, and during the school year 1988-89 she left her position at Lena Vista and became employed in the private sector. This occurred shortly after Moore had discussed the problem with Respondent. Following Kelly's departure from Lena Vista, the rumors abated. Respondent and Kelly were subsequently married. None of the six witnesses testifying in these proceedings, who were at Lena Vista school while the rumors regarding Respondent and Kelly were rife, were ever questioned by personnel from the superintendent's office until shortly before this hearing. This would indicate little credence was given to the anonymous calls. During the school years 1986-87, 1987-88 and 1988-89, French received no evaluation less than meeting performance expectations, and on several sections in the evaluation he was rated as meeting above performance expectations. In June 1989, nearly a year after Kelly became employed elsewhere, Respondent was advised by Moore that he was being involuntarily transferred to another school with no change in his pay status during his multi-year contract. Respondent's letter dated June 8, 1989 (Exhibit 11) to the Superintendent requested he be advised to which position he was being transferred, where was the school located, what infractions by him warranted disciplinary action and when would he be given a hearing to challenge this decision. This letter was responded to by the School Board Attorney who advised Respondent that his private activities had invaded the workplace "to such an extent that you were perceived to have lost credibility and effectiveness as a leader of your assigned school"; that he was being appointed as Assistant Principal of Administration at Kathleen Junior High School commencing with the opening of the 1989-90 school year; that this was not intended to be a charge of misconduct nor a disciplinary action; and that, since there was no change in his salary, he was not entitled to a due process hearing to challenge this transfer. French subsequently requested a formal hearing which was denied by Petitioner. It was from this Final Order that French appealed to the Second District Court of Appeal, who ordered that French be granted a formal hearing to consider, intra alia, the length of French's Principal contract, his rate of pay for the duration of that contract, whether his demotion to Assistant Principal is merit based as required by School Board rules, and whether the transfer is consistent with the terms of French's multi-year contract as Principal. Donald Cox, Assistant Superintendent for Personnel, testified that Section 6Gx53-3.012 D of the School Board's Policy Manual had consistently been interpreted by the School Board to require for demotional transfers that the employee be subject to a change in job title and a reduction in pay. This section provides: D. Demotional Transfer: The reassignment of an employee to a position on a lower level of supervisory or administrative authority or rank, or from a position of supervisor or administrative rank to a position which has no supervisory or administrative authority. As a result of such demotion, the employee will ordinarily be subject to a change in job title or a reduc- tion in the rate of remuneration (or both). The School Board may demote an employee represented by the Association if the competency or adequacy of the work per- formance of the employee has, after evaluation, been rated as less than satisfactory by the Superintendent or any designee who has been properly certified and authorized to make such evaluations and ratings. The District Performance Management Program shall be used for the proper procedure in dealing with this section. To achieve the interpretation of the above-cited rule testified to by Cox, it is necessary to change the disjunctive "or" to the conjunctive "and" in Section D.1. and delete the parenthetical "or both". Respondent presented evidence, Exhibits 16 and 17, showing the additional cost to him resulting from the transfer from Lena Vista to Kathleen. Respondent also requested he be awarded attorney's fees for costs involving the filings of motions to compel discovery.
Recommendation It is recommended that a Final Order be entered finding no legal basis exists for Ferris French's demotion to Assistant Principal has been proved; and that Ferris French be reinstated as Principal of a Polk County School and issued a new multi-year contract beginning with the 1991-92 school year. ENTERED this 27th day of February, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1991. APPENDIX Treatment Accorded Petitioner's Proposed Findings: Petitioner's proposed findings of fact are generally accepted. 2. Last sentence rejected insofar as giving French specific instructions is concerned. (first) 4(a). Rejected that they were often gone to lunch for 2 hours, 3 times per week. (second) 4. Second sentence rejected as unsupported by credible evidence. (second) 4(e). First sentence rejected. (4). Rejected. 5. Second sentence rejected as supported by no evidence. Ultimate sentence accepted only insofar as anonymous telephone calls were received. Accepted, but no written evaluations as required by School Board policy were prepared. First sentence rejected as incomplete. Balance accepted insofar as not inconsistent with H.O. #21 and 22. Rejected insofar as this implies the duties of principal and assistant principal are similar. 13. Rejected as fact. Accepted as testimony of Cox. French's multi-year contract as principal would not be renewed upon its expiration absent this hearing. Respondent's proposed findings are generally accepted. COPIES FURNISHED: Donald H. Wilson, Esquire Post Office Box 1758 Bartow, FL 33838-1758 John D. Carlson, Esquire 1709-D Mahan Drive Tallahassee, FL 32308 C. A. Boswell, Jr., Esquire Polk County School Board Post Office Box 391 Bartow, FL 33830 Dr. John A. Stewart Superintendent Polk County School Board Post Office Box 391 Bartow, FL 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399-0400
The Issue Whether just cause exists for Petitioner to suspend Respondent for 10 days without pay.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times material to this case, Respondent was employed by the School Board as a kindergarten teacher at Park Lakes Elementary School (“Park Lakes”), a public school in Broward County, Florida. The proposed discipline is based upon conduct occurring on Thursday, May 15, 2014, during the 2013-2014 school year. During the 2013-2014 school year, Kerlaine Louis was a paraprofessional assigned to Respondent’s class. On May 15, 2014, Respondent and Ms. Louis took thirteen of Respondent’s kindergarten students to the City of Lauderhill Mullins Park Pool Facility (“pool facility”) to participate in a water-safety class.1/ To get to the pool facility on May 15, 2014, Respondent, Ms. Louis, and the thirteen students rode together on a standard Broward County school bus. The bus picked up Respondent, Ms. Louis, and the thirteen students from Park Lakes at approximately 11:00 a.m. Respondent and Ms. Louis loaded the students onto the school bus at that time. Approximately 10-15 minutes later, the bus arrived at the pool facility with all of the thirteen students present. The bus drove directly from the school to the pool facility, and dropped Respondent, Ms. Louis, and the thirteen students off in front of the building where the pool facility is located. The pool is located behind the building. The thirteen students were scheduled to start their water-safety class at 11:30 a.m. The class was scheduled to end at 12:00 p.m. However, due to bad weather, the class was canceled. Respondent learned of the cancellation of the class after arriving at the pool and exiting the school bus with the children. Because the class was canceled, Respondent, Ms. Louis, and the thirteen students gathered in the patio area located in the back of the pool facility (behind the building and near the pool), where they waited under a covered patio area for the school bus to return to pick them up and bring them back to the school. Respondent brought some paperwork with her to work on at the pool facility. While waiting on the bus to return, the students interacted with each other. During this time, Ms. Louis spent most of her time pre-occupied with an exceptional student in the class who is autistic.2/ No lifeguards were on duty or in close proximity to the students and nobody was in the pool. While waiting for the bus to return to the pool facility, Respondent left the patio area and went inside the building. Respondent returned to the patio area in the back of the pool facility after being gone approximately five minutes. As she returned to the patio area, Respondent saw the bus coming around the front of the building. The bus returned to the pool facility at approximately 12:00 p.m. to pick up Respondent, Ms. Louis, and the thirteen students. Respondent gathered the children to walk them to the area where they would board the bus. Because it was raining, Respondent, Ms. Louis, and many of the children quickly boarded the bus. Shortly thereafter, the bus departed for the return trip to Park Lakes. However, by the time the school bus returned to the school at approximately 12:30 p.m., only Respondent, Ms. Louis, and eleven of Respondent’s students were on the bus. Two of Respondent’s students were left behind at the pool facility, unsupervised after Respondent and Ms. Louis left the pool facility without checking to see that all of the students were accounted for. Respondent did not realize that two of her students had been left behind at the pool facility until sometime after returning with the other students to her classroom at Park Lakes.3/ The two students that were left behind at the pool facility had gone to the bathroom. The bathroom is located along an exterior corridor of the building. Taking attendance and conducting a “head-count” of kindergarten students is an essential duty of a kindergarten teacher. Taking attendance and conducting a “head-count” of kindergarten students is required of all kindergarten teachers at Park Lakes at every transition point during a field-trip. A transition point occurs whenever there is movement of the children. Taking attendance and conducting a “head-count” of Respondents’ students who were participating in the water-safety class at every transition point was necessary to insure that all of Respondents’ students who were participating were accounted for and remained safe. The responsibility for that task fell on Respondent. Respondent was expected to take attendance and conduct a “head-count” of the students taking the water-safety class as they were leaving the classroom; as they were exiting the school; as they were boarding the bus; and while they were in route to the pool facility. Respondent was also expected to take attendance and conduct a “head-count” of the students taking the water-safety class when they exited the pool facility; as they boarded the bus to return to the school; while they were on the bus in route back to the school; and upon the students’ return to the school after departing the bus. At hearing, Respondent acknowledged that she failed to take attendance or conduct a “head-count” of her students prior to boarding the bus at the pool facility to return to the school. Furthermore, Respondent acknowledged at hearing that she failed to take attendance or conduct a “head-count” of her students while on the bus during the return trip to the school, or at the school after returning to the school. At hearing, Respondent conceded that she “dropped the ball” by failing to take attendance and conduct a “head-count” of her students before getting on the bus at the pool to return to the school, on the bus during the return trip to the school, and when she returned to the school. Had Respondent taken attendance and a “head-count” of her students while at the pool facility just prior to boarding the bus to return to the school, or while on the bus before leaving the pool facility, she would have discovered that two of the students were missing, and the children would not have been left behind at the pool facility. Respondent was visibly upset and remorseful of her conduct at the hearing. Within five minutes after the school bus departed to return to the school, April Nixon, a lifeguard at the pool facility who was inside the building, encountered the two children standing in an interior hallway of the pool facility. Ms. Nixon immediately called Park Lakes to report that the two students had been left behind; she locked all of the doors, and she remained with the students from the point she discovered them until two Park Lakes employees came to pick them up at approximately 1:25 p.m., and return them to the school. Significantly, for several minutes after the bus departed to return to the school, the two students were unsupervised, and their physical health and safety were in jeopardy. They could have easily wandered into the pool and drowned; walked further outside of the facility where they could have been kidnapped; or walked into a large lake, which is located very close to the perimeter of the pool facility-- accessible through a short walk through an unlocked door. Respondent failed to make reasonable effort to protect the two students from conditions harmful to their physical health and safety by failing to take attendance and conduct a “head- count” of the students in her class on multiple occasions on May 15, 2014, including: 1) when the students exited the pool facility to return to the bus; 2) as they boarded the bus at the pool facility to return to the school; 3) while they were on the bus in route back to the school; and 4) upon the students’ return to the school after departing the bus. Respondent’s conduct on May 15, 2014, also demonstrates incompetency due to inefficiency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order suspending Respondent without pay for 10 days. DONE AND ENTERED this 8th day of January, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2015.
