The Issue Whether the School Board of Escambia County should suspend Roosevelt M. Harvey for three days, without pay, for striking a student unlawfully?
Findings Of Fact A teacher for 27 years, Roosevelt Moses Harvey has taught in the public schools of Escambia County for 18 years. Since his involuntary transfer from Escambia High in 1983, he has taught middle schoolers math at Beggs, a school truants and other disruptive or disinterested students eligible for "alternative education" attend. On November 4, 1985, two of the twelve students enrolled in Mr. Harvey's third period class were absent. The class was more unruly than usual that morning. Students taunted Mr. Harvey with comments about his car ("a pitter-patter for a motor") and his clothes ("from a rummage sale.") The student Dustin Cottle was not responsible for these particular impertinences. Testimony of Vivian Swing. In the past, Dust in had refused to do school work. When asked on November 4, "Are you going to work today?" he said, "No." Testimony of Dustin Cottle. If he wasn't going to work, he should leave, Mr. Harvey said, to which Dustin replied, "If you give me some work I will do it," or words to that effect and stayed in his seat, with one foot out in the aisle. Testimony of Dustin Cottle. On his way down the aisle to another student, Mr. Harvey accidentally tripped over Dustin's foot. "Why'd you step on my foot?" Dustin asked. At this, Mr. Harvey swatted him on the back of the head with the manila file he had in his hand. Dustin struck Mr. Harvey's hand in retaliation. Testimony of Dustin Cottle. When Dustin got to his feet and began walking away, Mr. Harvey followed him and hit him a second time as he neared a table in the front of the room. This blow threw Dustin off balance so that he struck his head on the table. When Dustin picked up a chair and lifted it overhead, as if to hit Mr. Harvey with it, Vivian Swing left the room to get help. Before she returned with another teacher, Dustin dropped the chair and left the classroom in search of Ms. Williamson, his counselor. Before the events of November 4, 1985, Roland Charles Lovely, Beggs' principal, had counselled Mr. Harvey not to argue with students. If students are verbally disruptive, the teacher should write a referral. Striking a student under the circumstances Mr. Harvey struck Dustin Cottle is against policy. A teacher can summon help with a buzzer on the classroom wall, if need be.
The Issue Whether the Respondent's employment with the School Board of Dade County should be terminated.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Dade County School Board is responsible for operating, controlling, and supervising all public schools within the school district of Miami-Dade County, Florida. Section 4(b), Article IX, Florida Constitution; Section 230.03, Florida Statutes (1997). Ms. Scott is employed by the School Board as a custodian. She began working for the School Board in 1990 as a part-time food service worker at South Dade, and, in early 1992, she began working at South Dade as a full-time custodian. Custodians are classified by the School Board as maintenance workers, and Ms. Scott was a member of AFSCME at all times material to this action. The school's head custodian is responsible for overseeing the day-to-day performance of the custodians, which includes assigning duties to each custodian and developing a schedule for each custodian identifying the tasks that must be accomplished during specified blocks of time. The schedule is approved by the principal of the school. John Alexander is, and was at all material times, the head custodian at South Dade and Ms. Scott's immediate supervisor. Ms. Scott's job responsibilities and duties included "policing" 2/ all ten girls' restrooms after each class change; policing the girls' locker room; policing certain other areas, including designated corridors, the auditorium lobby, the clinic, and the band area; cleaning five girls' restrooms after 2:00 p.m.; cleaning designated cafeteria windows; removing graffiti from walls, mirrors, and corridors as needed; cleaning and disinfecting the drinking fountains in all corridors; cleaning graffiti off walls and doors in the ten girls' restrooms; and cleaning, dusting, and mopping the audio-visual room. Ms. Scott was also expected to respond to emergencies. These duties were the same as those assigned to the female custodian whom Ms. Scott replaced and as those currently being performed by the woman who replaced Ms. Scott at South Dade. Ms. Scott's training consisted, first, of working for several weeks with the female custodian she was hired to replace. Then, after Ms. Scott's predecessor retired, Mr. Alexander worked with her for approximately two weeks. Mr. Alexander noticed problems in her job performance shortly after Ms. Scott began working as a custodian. In a memorandum dated May 12, 1992, Mr. Alexander identified two specific incidents when Ms. Scott refused to follow his instructions. He notified Ms. Scott in the memorandum that he would recommend her termination as of May 19, 1992, during her probationary period, for lack of motivation and failure to perform her job responsibilities. As a result of this memorandum, on May 19, 1992, Ms. Scott, Mr. Alexander and Dr. Paul Redlhammer, the principal of South Dade at that time, met to discuss Ms. Scott's job performance. After this meeting, Dr. Redlhammer sent Ms. Scott a "Memo of Understanding: Job Performance," in which he summarized the reasons for the concern about her job performance and notified her that Mr. Alexander would work with her for two weeks to help her improve her job performance. Mr. Alexander did not notice any improvement in Ms. Scott's work during the two-week period or thereafter. On February 3, 1993, Mr. Alexander had a discussion with Ms. Scott about leaving work early, failing to empty the trash cans in her areas, and failing to clean the floor in the audio- visual room. On May 21, 1993, Mr. Alexander issued a Notification of Written Warning to Ms. Scott regarding her unsatisfactory performance, which included insubordination, disrespect, and improper behavior. Mr. Alexander proposed that Ms. Scott's file be reviewed and that she be given an opportunity to explain her performance. Mr. Alexander intended to recommend her termination from employment. From September 24, 1993, through October 27, 1993, Mr. Alexander kept a log of the time Ms. Scott reported for work and left work each day. The log reflected that Ms. Scott left work thirty to forty-five minutes early on fifteen days during that period, that she took a forty-minute morning break one day, and that she reported for work between one hour and forty minutes and two and one-half hours late on three days. In Ms. Scott's November 15, 1993, annual evaluation, Mr. Alexander rated Ms. Scott poor in the categories of taking lunch and breaks at the proper times, cleaning bathrooms, washing windows, following orders, following work schedules, and working well with other custodians. Mr. Alexander discussed the evaluation and her deficiencies with Ms. Scott, and she acknowledged by her signature that she had seen the written evaluation. Ms. Scott's job performance did not improve during the 1994-1995 school year. Despite being told repeatedly not to do so, Ms. Scott spent inordinate amounts of time talking with school security monitors in the school's corridors and in the school's north parking lot, sometimes spending an hour or more a day in these conversations. During most of that time, Ms. Scott was not on authorized breaks or lunch period. At the same time, Ms. Scott often did not properly police the girls' bathrooms or clean the areas for which she was responsible, and, on several occasions, she refused to obey direct orders from Mr. Alexander. In September 1994, Orlando Gonzalez, the assistant principal at South Dade, scheduled an informal conference with Ms. Scott to discuss the deficiencies in her work performance, including an incident in which Mr. Gonzalez observed Ms. Scott watching television at 9:30 a.m. in the audio visual room. Ms. Scott left the school before the scheduled conference without permission. As a result of this behavior, Mr. Gonzalez requested that Donald Hoecherl, the new principal at South Dade, schedule a formal conference for the record to discuss "serious deficiencies in her job performance." Mr. Gonzalez later withdrew the request for the conference on the record because he thought he could accomplish more by counseling with Ms. Scott informally to help her improve her job performance. Nonetheless, a conference for the record was held by Mr. Hoecherl in November 1994 for the stated purpose of addressing "continuous incidents of insubordination, failure to complete assigned work, and leaving work early." Ms. Scott was advised by Mr. Hoecherl that, if the problems were not resolved, another conference for the record would be held and that he would formally request her dismissal. Ms. Scott refused to sign the conference summary. Ms. Scott's job performance did not improve after the November 1994 conference for the record. Mr. Hoecherl tried to work with Ms. Scott on an informal basis, but his efforts to improve her job performance were not successful. In April 1995, Mr. Gonzalez received complaints from two parents about the lack of cleanliness in the ladies' restroom in an area which Ms. Scott was responsible for cleaning. Mr. Gonzalez told Mr. Alexander to direct Ms. Scott to clean that restroom. The next day, Mr. Gonzalez found that the restroom had not been cleaned. Mr. Gonzalez prepared a memorandum to Ms. Scott directing her to clean the restroom. In June 1995, a Notification of Written Warning was directed to Ms. Scott because she refused to obey direct orders from Mr. Alexander. Ms. Scott's job performance deteriorated during the 1995-1996 school year. On October 5, 1995, a Notification of Written Warning was issued for "[f]ailure to follow and complete assigned work." On November 8, 1995, a conference for the record was held and was attended by Ms. Scott and two representatives of AFSCME, as well as by Mr. Hoecherl, and Mr. Gonzalez. Three issues were discussed: Ms. Scott's direct and implied insubordination when she refused an order by Mr. Alexander to clean up the clinic area after a student became ill and when she twice refused to comply with Mr. Hoecherl's request that she step into his office to discuss the incident; Ms. Scott's pattern of failing to complete her job assignments; and her pattern of loitering on the job by talking to the security monitors in the corridors and in the north parking lot. The written summary of the conference for the record, dated November 13, 1996, included the following: In an effort to resolve these issues the following directives were outlined: Comply with all requests and directives issued by your immediate supervisor or administrator. . . . In regard to this issue failure to comply with the direction of an administrator or immediate supervisor constitutes insubordination and will result in additional disciplinary action. Follow your job assignments as given to you prior to this conference and again at this conference. The cleaning must be performed in a satisfactory manner meeting the requirements to maintain a clean and healthy school setting. Failure to complete your job assignments will result in additional disciplinary action. Refrain from loitering while on the job. You are reminded that you may spend your break and lunch time in dialog with others if you wish. You are not entitled to spend an inordinate amount of time talking and not performing your job assignments. Failure to meet this condition will result in additional disciplinary action. Ms. Scott refused to sign the written summary of the conference. Ms. Scott's job performance did not improve after the conference, and she did not follow the directives outlined for her. She continued to talk with other employees at times when she had no scheduled break; she failed to perform or inadequately performed her assigned tasks; and she engaged in a pattern of arriving at work late without authorization, taking time off during her shift without authorization, and leaving work before the end of her shift without authorization. On or about February 16, 1996, Mr. Alexander attempted to discuss these problems with Ms. Scott. She became angry and belligerent. Mr. Alexander stood in front of his office door to prevent Ms. Scott from going out into the corridor because the students were changing classes and he felt it would not be appropriate for them to see her in that frame of mind, but she left his office anyway. Ms. Scott was immediately summoned for a meeting with Mr. Hoecherl and Mr. Alexander. During the meeting, a school police officer arrived in response to a 911 call, which Ms. Scott had made, accusing Mr. Alexander of restraining her against her will. The police officer determined that there was no basis for this charge, and Ms. Scott left the meeting in an angry and belligerent manner. Mr. Hoecherl referred this incident to the School Board's Office of Professional Standards. An administrative review was ordered, and Mr. Hoecherl was assigned to investigate the February 16 incident. On March 25, 1996, at Mr. Hoecherl's request, he and Ms. Scott met in his office. Mr. Hoecherl explained to Ms. Scott that he was trying to learn what had happened and wanted her to tell him her version of the incident. Ms. Scott became very agitated and left Mr. Hoecherl's office, slamming the door behind her. Her behavior as she left his office was very disruptive, but he nonetheless followed her to her car and asked that she return to his office to discuss the February 16 incident. Her response was belligerent and defiant, and Mr. Hoecherl told her to go home and not return to South Dade for the rest of the day. On the morning of March 26, Ms. Scott reported to work at South Dade. She was told that she had been reassigned to the Region VI administrative office and that she was not to return to the South Dade campus. In accordance with directions he received from the School Board's Office of Professional Standards, Mr. Hoecherl instructed Ms. Scott to report to the personnel director at the Region VI office. At approximately 8:00 a.m. on March 27, Ms. Scott appeared at the custodial office at South Dade. Mr. Hoecherl again told her to report to the Region VI office and provided her with written notification of her reassignment. Ms. Scott reported to the Region VI office, but, a short time later, she left and returned to South Dade. Ms. Scott was again told to leave the school grounds and informed that failure to do so would be considered gross insubordination; she refused to leave South Dade despite repeated orders from Mr. Hoecherl and the school police. Ms. Scott was belligerent and disruptive, and she was placed under arrest by the School Board police. She was escorted out of the school building in handcuffs; Mr. Hoecherl covered her shoulders with a jacket to hide the handcuffs from the students, but Ms. Scott attempted to shrug it off. In a memorandum dated March 28, 1996, to the Office of Professional Standards, Mr. Hoecherl detailed Ms. Scott's poor job performance from January 12, 1996, through March 25, 1996. A conference for the record was scheduled for March 29 at 2:00 p.m. by James Monroe, the Executive Director of the School Board's Office of Professional Standards. Ms. Scott failed to report for the conference even though she was contacted at her home by telephone shortly after 2:00 p.m. and told that they would wait for her for one hour. The conference for the record was rescheduled for April 4, 1996, and the topics to be discussed were identified in the notice as follows: "[Y]our failure to report for a conference on March 29, 1996, at 2:00 p.m., as previously directed . . .; failure to comply with site directives; unauthorized departure from the work site; attendance/performance related issues; medical fitness for continued employment and your future employment status with Dade County Public Schools." During the conference, Ms. Scott was advised that her employment status would be reviewed in light of the facts discussed at the conference, and she was directed to report to the Region VI office pending formal notification of the decision of the Superintendent of Schools and to perform all tasks and duties assigned to her. During the time she was assigned to the Region VI office, from April 1996 until September 1996, Ms. Scott disregarded instructions and directives from her supervisors, she failed to perform her job responsibilities or performed them inadequately, and she was absent from work a number of times without authorization. From September 1995 to September 1996, Ms. Scott was absent from her job without authorization for 20 days. She was absent from her job without authorization for three consecutive workdays from March 28 through April 1, August 23 through September 5, 1996. 3/ Ms. Scott was suspended by the School Board at its September 11, 1996, meeting. Mr. Alexander, Mr. Gonzalez, and Mr. Hoecherl tried for several years, through numerous informal memoranda and discussions, to help Ms. Scott bring her job performance up to an acceptable level. Ms. Scott was given several formal written notifications and warnings about the deficiencies in her job performance, and three formal conferences for the record were held to put Ms. Scott on notice of the perceived job deficiencies and of the complaints about her work and to allow her to explain the situation from her perspective. Ms. Scott did not comply with the directives for corrective action developed during the conferences for the record, and her attitude and job performance generally deteriorated from 1992 until September 1996, when she was suspended and dismissal proceedings instituted. The evidence presented by the School Board is sufficient to establish that Ms. Scott's job performance was deficient in that she failed to perform or inadequately performed her assigned job responsibilities; that on numerous occasions she refused to comply with requests and direct orders from the head custodian, from the assistant principal, and from the principal of South Dade; that she accumulated excessive unauthorized absences; and that she abandoned her position with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County issue a final order terminating Gale Scott's employment. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998.
The Issue Whether the Seminole County School Board is entitled to dismiss Respondent for just cause for misconduct in office and/or gross insubordination.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner, the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of the school board. Respondent, Robert Brinkman, is employed by the School Board of Seminole County, Florida, as both a teacher at Sterling Park Elementary School and a custodian at another school in Seminole County and has a professional services contract for instructional personnel with the School Board of Seminole County. Respondent is 57 years old and has taught school for 23 years. No evidence was presented regarding his status as a custodian other than he was a custodian at the time he received his letter of suspension and that he was asked to "turn in his keys." He is not currently performing custodial services. On Wednesday, December 13, 2000, Respondent requested of his supervisor, Principal Deborah Wright, that he be given his paycheck on the following day, Thursday, December 14. The regular payday was Friday, December 15. Respondent advised Principal Wright that he had planned to go on vacation on the 15th and needed his paycheck a day early. Principal Wright refused to agree to give Respondent his paycheck early, advising him that no one else would be given the checks early and further advising him that he would have to reschedule his vacation. Respondent returned to the office he shared with Dawn Towle and, as characterized by both Respondent and Miss Towle, "he just lost it" and said "that black bitch won't give me my check." There is no evidence that this statement was overheard by any students; none were present. Whether the statement was directed to Miss Towle or not, she heard the statement and she responded, "excuse me?", to which Respondent replied "that black lady won't give me my check early." Miss Towle immediately reported the statement to Principal Wright. Principal Wright appropriately interpreted Respondent's statement as a racial remark made about her; the racial remark made her angry. Miss Towle suggests that on four occasions over a two school-year period, while she and Respondent shared their 10-square-foot office, she heard Respondent utter remarks that she considered "similar (racial) comments." The importance of these purported racial comments is discounted by the fact that they occurred in private conversations, some were not epithets or racial slurs, the only one concerning Principal Wright may not have been intended to be heard by anyone (Respondent "mumbled under his breath") and that Respondent denied having made any racial remarks other than the remark on December 13, 2000. Principal Wright called Respondent to her office, and in the presence of a witness, the assistant principal, told Respondent that "if you ever refer to me by any name other than Mrs. Wright, I will walk you out of the school on your toes." Under the circumstances, while the undersigned can only imagine the true import of the statement, it seems perfectly appropriate. Respondent immediately attempted to apologize; Principal Wright directed him to leave her office. He returned later that morning and again attempted to apologize and was again rebuffed. Principal Wright did not accept his apology because she did not believe his apology was genuine. Principal Wright acknowledged animosity toward Respondent based on previous instances with children; she was not aware of any prior racial remarks made by Respondent. Respondent mailed Principal Wright an apology one week after the incident indicating that "he was upset" and that his statement was "inappropriate and did not indicate how I feel about you." Principal Wright testified that Respondent had done nothing that was "racially harassing to her in the past," that his statement did not intimidate her or create a "hostile work environment," and that the statement (dealing with it) took time that she could have devoted to other job responsibilities. Respondent's statement, while clearly racially and sexually offensive, was isolated and not so severe as to create a hostile or abusive work environment. Principal Wright immediately reported the statement to John Reichert, who is charged by the School Board with the responsibility of investigating complaints of misconduct. Mr. Reichert arrived at Sterling Park Elementary School at 12:30 p.m., on the day of the incident. After interviewing Miss Towle and Principal Wright, he interviewed Respondent. Respondent acknowledged making the statement, said it was "a stupid thing to say" but that he was upset because he couldn't get his check, and that "he just lost it." The same day or the next, Respondent was suspended with pay which matured into a suspension without pay, effective January 17, 2001. The slur first heard or overheard by Miss Towle was indirectly published by Principal Wright to the assistant principal who became a witness to Principal Wright's admonishment of Respondent. While the assistant principal is not specifically aware of the text of Respondent's statement, she was made aware that Respondent had made a racial statement about Principal Wright. To the degree this remark has been further published, it is a result of appropriate investigative and administrative action taken by the School Board. There is no evidence that there is a general awareness, in the school system or the community, of Respondent's statement. Other than the testimony of Miss Towle, there is no suggestion that the Respondent made other sexual/racial statements. He has no record of sexual/racial misconduct. Respondent maintains that his remark was not racially motivated, that he was just very upset. He has enjoyed working for Principal Wright for five years. At the final hearing, Respondent again acknowledged that what he said was very inappropriate and that he is very sorry for what he said. There is no evidence that Respondent's remark actually impaired his effectiveness in the school system--which is a necessary factual component of the offense of misconduct in office. The only evidence received on the issue of impairment of Respondent's effectiveness in the school system is John Reichert's testimony that he had no knowledge that Respondent's effectiveness would be impaired anywhere beyond Sterling Park Elementary School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Seminole County School Board enter a final order dismissing the charges against Respondent and returning him to full duty, effective January 17, 2001, with all back pay and benefits. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. JEFFREY 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 20th day of April, 2001. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Sandra J. Pomerantz, Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Dr. Paul J. Hagerty Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773
The Issue As to Case 95-3362RX: 1. Whether the portion of School Board Rule 6Gx13-3C-1.08 pertaining to vendors who have defaulted on contracts for commodities is an invalid exercise of delegated legislative authority. 2. Whether the instructions to bidders issued by the School Board as part of its invitation to bid on commodities constitute inadequate, unpromulgated rules. As to Case 95-4834Rx: Whether an amendment to School Board Rule 6Gx13-3C-1.08 (adopted July 12, 1995) that purports to disqualify as bidders for 14 months the principals of defaulted vendors is an invalid exercise of delegated legislative authority.
Findings Of Fact THE PETITIONERS Petitioners Mary Ann Talmadge and Dunbar Electric Supply, Inc., are vendors who have bid on invitations to bid (ITBs) issued by the School Board. Ms. Talmadge is an officer and principal shareholder of Dunbar. Thomas W. Talmadge is the husband of Ms. Talmadge and is also a principal shareholder and officer of Dunbar. The Petitioners have standing to bring these rule challenges. THE SCHOOL BOARD - GENERAL AUTHORITY The Respondent is a duly constituted school board with the authority to enact rules, including those relating to the procurement of commodities. Article IX, Section 4, Florida Constitution, provides, in pertinent part, as follows: 4.(a) Each county shall constitute a school district. . . . In each school district there shall be a school board. . . . (b) The school board shall operate, control and supervise all free public schools within the school district. . . . Section 230.03, Florida Statutes, provides, in pertinent part, as follows: The district school system shall be managed, controlled, operated, administered, and supervised as follows: * * * SCHOOL BOARD. - In accordance with the provisions of s. 4(b) of Art. IX of the State Constitution, district school boards shall operate, control, and supervise all free public schools in their respective districts and [may exercise any power except as expressly prohibited by the State Constitution or general law.] [Emphasis added.] Section 230.22(2), Florida Statutes, confers rulemaking authority on school boards as follows: ADOPT RULES AND REGULATIONS. - The school board shall adopt such rules and regulations to supplement those prescribed by the state board as in its opinion will contribute to the more orderly and efficient operation of the district school system. SCHOOL BOARD PURCHASES - IN GENERAL Section 230.23(2), Florida Statutes, confers upon school boards the authority to contract, to sue, and to purchase commodities as follows: The school board, acting as a board, shall exercise all powers and perform all duties listed below: * * * CONTROL OF PROPERTY. - Subject to regulations of the state board, retain possession of all property to which title is now held by the school board and to obtain possession of and accept and hold under proper title as a body corporate by the name of "The School Board of County, Florida," all property which may at any time be acquired by the school board for educational purposes in the district; manage and dispose of such property to the best interests of education; [contract, sue, receive, purchase], acquire by the institution of condemnation proceedings if necessary, lease, sell, hold, transmit, and convey the title to real and personal property, all contracts to be based on resolutions previously spread upon the minutes of the school board; receive, hold in trust, and administer for the purpose designated, money, real and personal property, or other things of value granted, conveyed, devised, or bequeathed for the benefit of the schools of the district or any one of them. [Emphasis added.] Section 237.02(1)(a), Florida Statutes, pertains to purchases by school boards and provides as follows: PURCHASES. - Each district school board shall develop and adopt policies establishing the plan to be followed in making purchases as may be prescribed by the state board. The state board rule pertinent to this proceeding is Rule 6A-1.012, Florida Administrative Code, which provides, in part, as follows: Purchasing Policies. Each district school board shall establish purchasing rules which shall include but not be limited by the following: * * * (6) Except as authorized by law or rule, bids shall be requested from three (3) or more sources for any authorized purchase or contract for services exceeding ten thousand (10,000) dollars. . . . The school board shall have the authority to reject any or all bids and request new bids. In acceptance of bids, the school board shall accept the lowest and best bid from a responsive and responsible bidder. . . . The School Board's Department of Procurement Management is responsible for administering and managing all of the purchases of materials and services for the school district of Dade County, Florida. School Board Rule 6Gx-3C-1.14 designates the Department of Procurement Management as the official purchasing agency for the School Board and requires it to make such purchases in compliance with Florida Statutes, State Board of Education Rules, School Board Rules, and administrative directives and manuals. The School Board has the authority to determine which bidders are responsible, the authority to reject bids from irresponsive bidders, and the authority to enact rules pertaining thereto. THE CHALLENGED RULE Rule 6Gx13-3C-1.08, is styled "Performance and Payment Security, Declining a Bid Award, and Bonding Company Qualifications". The rule, initially adopted in 1974 and subsequently amended, was adopted pursuant to the authority of Section 237.02(1)(a), Florida Statutes, and Rule 6A-1.012, Florida Administrative Code. The rule is divided into three parts. Part I pertains to performance security on construction bids and awards. Part II, the portion of the rule being challenged in this proceeding, pertains to performance security on awards other than construction. Part III pertains to bonding company qualifications. The rule, as amended on July 12, 1995, has been duly adopted by the School Board following all pertinent rulemaking procedures. The rule reasonably relates to one subject matter, protecting the School Board against defaults by parties who have been awarded contracts. Prior to its amendment on July 12, 1995, School Board Rule 6Gx13-3C-1.08 provided for performance security on awards other than construction, in pertinent part, as follows: Bid security is not required. However, a bidder who declines an award shall either (1) pay a bid default penalty of five percent of the unit price bid times the quantity, or $10, whichever is greater, or (2) lose eligibility to transact new business with the Board for a period of 14 months from date of award by the Board. A bidder who accepts an award but fails to perform shall either (1) pay a performance default penalty of 25 percent of the unit price of the item(s) awarded times the quantity, or $25, whichever is greater, (where partial ship- ment of items awarded has been made, the default penalty shall be applied to the balance remaining after items received have been deducted from the estimated quantity(ies),) or lose eligibility to transact new business with the Board for a period of 14 months from date of the cancellation of award by the Board. The School Board amended Rule 6Gx13-3C-1.08 on July 12, 1995, to provide as follows: Bid security is not required. However, a bidder who declines an award shall either (1) pay a bid default penalty of five percent of the unit price bid times the quantity, or $10, whichever is greater, or (2) lose eligi- bility to transact new business with the Board for a period of 14 months from date of award by the Board. A bidder who accepts an award but fails to perform shall either (1) pay a performance default penalty of 10 percent of the unit price of the item(s) awarded times the quantity, or $25, whichever is greater, (where partial shipment of items awarded has been made, the default penalty shall be applied to the balance remaining after items received have been deducted from the estimated quantity(ies),) or lose eligibility to transact new business with the Board for a period of 14 months from date of the cancellation of award by the Board. [The ineligibility shall be applicable to the principals individually and the entity, as well as any other firm in which a principal of a defaulting firm is a principal. For purposes of this rule principal is defined as an executive officer of a corporation, partner of a partnership, sole proprietor of a sole proprietorship, trustee of a trust, or any other person with similar supervisory functions with respect to any organization, whether incorporated or unincorporated]. [Emphasis added.] THE AUTHORITY OF THE SCHOOL BOARD TO IMPOSE LIQUIDATED DAMAGES OR TO DISQUALIFY DEFAULTED VENDORS FOR FOURTEEN MONTHS A provision for liquidated damages is not against public policy and is not prohibited by law or by state board rules. Pursuant to the provisions of Sections 230.03(2), 230.22(2), and 230.23(2), and 237.02(1)(a), Florida Statutes, the School Board has the authority to provide for liquidated damages in its purchasing contracts. A provision disqualifying vendors for a reasonable period of time based on prior performance is not uncommon in government contracts. The period of disqualification for defaulted vendors was for a one year period when the rule was first adopted. In 1987, the period of disqualification was extended from one year to fourteen months. The notice of intended action pertaining to this amendment provided, in pertinent part, as follows: PURPOSE AND EFFECT: This amendment extends the period of time a vendor is penalized for failing to accept a bid award or performing (sic) after a bid award has been made. This will give the Board more leverage in penalizing a vendor when necessary. SUMMARY: This amendment extends the penalty period for declining a bid award or failing to perform once a bid is awarded, from the current one (1) year period to a fourteen (14) month period, which will result in the vendor being precluded from the current contract and the subsequent contract. Such a provision disqualifying vendors for a reasonable period of time is not against public policy and is not prohibited by law or by state board rules. The period of fourteen months is a reasonable period for the term of disqualification. The School Board selected a period of fourteen months because many of its contracts are for one year terms. The rationale was to prevent a defaulted vendor from bidding on the ensuing year's contract. Pursuant to the provisions of Sections 230.03(2), 230.22(2), and 230.23(2), and 237.02(1)(a), Florida Statutes, the School Board has the authority to provide for the disqualification of defaulted vendors for a fourteen month period. The determination that a bidder has failed to perform the terms of a contract is initially made by a buyer in the School Board's Department of Procurement Management. Efforts are made to bring a defaulted vendor into compliance with the contract. If that cannot be done, the defaulted vendor is informed that it may either perform the contract, pay liquidated damages, or face disqualification. If the vendor performs or pays liquidated damages, the matter is ended. If the vendor refuses to perform or to pay liquidated damages, the School Board determines whether the vendor should be disqualified. A vendor who is subject to disqualification has the opportunity to address the School Board on that matter and has the right to challenge the agency action pursuant to Section 120.57(1), Florida Statutes. A principal of a disqualified vendor who is also being disqualified also has the right to address the School Board on that matter and has the right to challenge the agency action pursuant to Section 120.57(1), Florida Statutes. 2/ LIQUIDATED DAMAGES OR PENALTY Petitioners assert that the provision that gives a defaulted vendor the option to pay a sum equal to 10 percent of the bid price of undelivered commodities constitutes a penalty and is void. 3/ In support of their position, Petitioners correctly assert that the rule itself refers to this provision as a "default penalty." Notwithstanding that reference, the greater weight of the competent evidence in this proceeding established that the purpose of this provision of the challenged rule is to provide for reasonable liquidated damages so that the School Board can recoup its damages when a contract is breached. That the School Board has made an effort to set a reasonable amount is established by the research done by Mr. Carter in reviewing similar provisions in other government contracts and by the action of the School Board on July 12, 1995, in reducing the percentage from 25 percent to 10 percent. What has been referred to as a defaulted vendor's Option 1 is the payment of liquidated damages, not the payment of a cash penalty. The default provision serves three valid School Board purposes. First, it discourages vendors from defaulting on contracts. Second, it provides for liquidated damages if a vendor wants to keep its good standing as a vendor. Third, it prevents a vendor that has defaulted on its contract and thereafter has declined to pay the School Board's liquidated damages from securing other School Board contracts for at least 14 months following the default, thereby ensuring that the School Board will not have to deal with such a vendor during the period of disqualification. THE EXTENSION OF THE DISQUALIFICATION TO PRINCIPALS OF DEFAULTED VENDORS The extension of the disqualification to the principals of a defaulted vendor was enacted in response to problems the School Board experienced with the principals of certain vendors who, having defaulted on contracts in the name of one bidding entity, thereafter obtaining contracts under other vendor names and defaulted on the subsequent contracts. The extension of the disqualification serves a valid School Board purpose in that it prohibits the individuals who control various bidding entities from defaulting on a contract by one bidding entity while continuing to bid on other contracts through other entities. The amendment was duly adopted. The rule provides a definition of the operative term "principal" so that it is not vague and does not vest unbridled discretion in the School Board. It is within the School Board's authority to adopt this amendment pursuant to the provisions of Sections 230.03(2), 230.22(2), and 230.23(2), and 237.02(1)(a), Florida Statutes. Petitioner, Thomas Talmadge, has failed to demonstrate that the amendment is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8), Florida Statutes. THE INSTRUCTIONS TO BIDDERS Each ITB contains "Instructions to Bidders" that become part of the contract once the contract is awarded. Pertinent to this proceeding, the Instructions to Bidders that accompany each ITB for commodities, contain "instructions" as to the filing of objections to bid specifications (Section I.C.2.), the place, date, and hour for the submission of bids (Section II.C.), the method for filing objections for the award of bids (Section IV.D.), and the default provision (Section IV.F.). Section I.C.2. contains an agency statement of general applicability that is not found in any promulgated rule as follows: 2. OBJECTION TO BID/SPECIFICATION. Any objections to specifications and/or bid conditions must be filed in writing and must be received by the Superintendent of Schools no later than 9:00 A.M. on the date specified for acceptance of bid. Section II.C. contains an agency statement of general applicability that is not found in any promulgated rule as follows: PLACE, DATE AND HOUR. Bids shall be submitted by U.S. Mail, Courier/Express Service, or deposited in the BID receiving slot located in Room 352, 8:00 A.M. to 4:30 P.M., Monday through Friday, SCHOOL BOARD ADMINISTRATION BUILDING, 1450 N.E. Second Avenue, Miami, Florida 33132. Bids received after the date and hour specified in the BIDDER QUALIFICATION FORM will not be considered. Section IV.D. contains an agency statement of general applicability that is not found in any promulgated rule as follows: FILING OF OBJECTION. Any objections to an award by the Board must be filed in writing and must be received by the Superintendent of Schools no later than 9:00 A.M. on the first Monday following the award. 4/ Section IV.F. contains three sentences. The first two sentences merely repeat the default provisions contained in School Board Rule 6Gx13-3C-1.08. The final sentence, however, contains an agency statement of general applicability that is not found in any promulgated rule. The rule does not state that the vendor will be disqualified if it does not pay the liquidated damages within fifteen days of the default. Section IV.F. of the Instructions to Bidders is as follows: F. DEFAULT: In the event of default, which may include, but is not limited to non- performance and/or poor performance, the awardee shall pay to the Board as liquidated damages an amount equal to 10 [percent] of the unit price times the quantity, or $25, whichever amount is larger. Where partial shipment of items awarded has been made, the default penalty shall be applied to the balance remaining after the items received have been deducted from the estimated quantity(s). [Where no performance bond or check has been acquired (sic), each awardee who fails to pay the penalty within 15 days after it is invoked shall lose eligibility to be awarded new business by the Board for a period of 14 months from the date of cancellation of award by the Board]. [Emphasis added.]
The Issue The issues to be determined in this proceeding are whether St. Lucie County School Board (School Board) Rules 6.16 and 6.50*+ are invalid exercises in delegated legislative authority as defined by sections 120.52(8)(c), (d), and (e).
Findings Of Fact Ms. Jones is currently an employee of the St. Lucie County School Board, and has a professional service contract pursuant to section 1012.33, Florida Statutes. Her status with the School Board is “suspended without pay,” for reasons that are not relevant to this proceeding. As a classroom teacher, Ms. Jones is covered by the Collective Bargaining Agreement between the School Board of St. Lucie County and the Classroom Teachers Association. On June 13, 2017, the School Board suspended Ms. Jones without pay and on July 27, 2017, a Petition for Termination in Termination I was referred to the Division of Administrative Hearings for an evidentiary hearing. At that point, while Ms. Jones remained an employee of the School Board, she received no pay and no benefits from the School District. She began to look for other employment to support herself and her family. Ms. Jones applied to and was offered a job to work as a music teacher by the Somerset Academy St. Lucie (Somerset). Somerset is a charter school in St. Lucie County sponsored by and located within the geographical bounds of the School District and the jurisdictional bounds of the School Board. Ms. Jones did not submit an application for leave and the School Board did not approve a request for leave of absence in order for Ms. Jones to work at Somerset. By letter dated August 28, 2017, Superintendent Gent notified Ms. Jones of his intent to recommended to the School Board that she be terminated for grounds in addition to the already-existing suspension, i.e., for violating the School Board’s Rules 6.16(1); 6.301(2), (3)(b)(i), (3)(b)(xix), and (3)(b)(xxix); and 6.50*+. That letter became the basis for the Termination II proceeding. The factual basis for pursuing the second termination proceeding was that Ms. Jones was working at Somerset without having applied for and received approval for a leave of absence from the School Board. The merits of the School Board’s allegations in this second proceeding are no longer relevant in terms of Ms. Jones’ employment with the School Board, as the School Board, through counsel, has represented that the School Board no longer intends to pursue the allegations in Termination II. The allegations are relevant and informative, however, in establishing the School Board’s interpretation of its rules and establishing Ms. Jones’ standing to challenge the validity of those rules. The evidence presented at hearing established that Ms. Jones has standing to bring this rule challenge. School Board rule 6.16 is entitled “Dual employment,” and provides as follows: No person may be employed to work in more than one position in the school system except upon the recommendation of the Superintendent and approval of the School Board. No employee shall accept other employment that might impair the independence of his or her judgment in the performance of his or her duties. Rule 6.16 lists as its statutory authority sections 1001.41, 1012.22, and 1012.33, Florida Statutes, and lists sections 1001.43 and 1012.22 as the laws implemented. No reference to authority granted by the Florida Constitution is identified. School Board Policy 6.50*+ is entitled “Leave of Absence,” and provides in pertinent part: Leave of absence. A leave of absence is permission granted by the School Board or allowed under its adopted policies for an employee to be absent from duty for a specified period of time with the right to return to employment upon the expiration of leave. Any absence of a member of the staff from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. Length of Leave and Pay. Generally, no leave or combination of leaves, except military leave or Workers’ Compensation Leave, will be granted for a period in excess of one year. Illness-in-line-of- duty leave may not be extended beyond the maximum medical improvement date or a maximum of two (2) years from the date of injury, whichever is the earliest date. Leave may be with or without pay as provided by law, regulations of the State Board, and these rules. For any absence that is without pay, the deduction for each day of absence shall be determined by dividing the annual salary by the number of days/hours for the employment period. Employment leave. A leave shall not be granted to any employee to accept other employment unless the leave is to accept employment at a charter school as provided in paragraph (5) below. Accepting employment while on a leave of absence cancels the leave automatically. The person on leave will be notified that he or she must return to work with the School Board immediately, resign or be terminated. The Superintendent shall develop procedures to implement leave provisions. Charter School Leave. An employee may be granted leave to accept employment at a charter school in St. Lucie County in accordance with the following provisions: Teachers. Teachers may apply for leave to work at a charter school. The School Board will not require resignation of teachers desiring to work at a charter school. Teachers granted such leave by the School Board are not required to be on a continuing or professional services contract and shall not be subject to the seven (7) continuous years’ service requirement. Should a teacher on leave elect to return to work at the District, the teacher shall return to the teacher’s former position or a comparable position for which the teacher is qualified. * * * Method to Request Leave. An application to request leave to accept employment in a charter school shall be submitted using the procedures specified in Policy 6.501(1). For ten month instructional personnel, an application to request leave to accept employment at a charter school shall be submitted to the principal at least forty-five (45) days prior to the first day of work for the school year . . . . Insurance and Retirement Benefits. It shall be the sole responsibility of the charter school site to provide insurance and retirement benefits to charter school employees . . . . * * * Notice of Intent to Return. Employees on charter school leave shall give the School Board written notice of their intent to return at least sixty (60) days prior to the beginning of the semester they wish to return. Requirement for Annual Renewal. Charter school leave must be renewed annually. It is the sole responsibility of the employee on leave to submit an annual written letter notice of leave to the Superintendent or designee, and a copy of the annual written letter notice of leave to the employee’s school principal or immediate supervisor, as applicable, on or before April 1 of each year if they wish to renew their charter school leave for the following school year. Employees who do not submit the required annual leave form on or before April 1st will be considered to have voluntarily terminated their employment, and will no longer be eligible for any benefits or other consideration under this leave policy. (Emphasis supplied.) 11. Rule 6.50*+ lists sections 1001.41, 1012.22, and 1012.33 as its statutory authority, and lists sections 1001.43, 1002.33(12)(e), 1012.22, 1012.61, 1012.63, and 1012.66 as the laws it implements. No reference to authority granted by the Florida Constitution is identified. Rule 6.50*+ provides that if a teacher working for the School Board wishes to work at a charter school within St. Lucie County, that teacher must apply for permission to do so. However, the definition of a leave of absence in the first paragraph of rule 6.50*+ specifically provides that a leave of absence allowed under the rule is for a specified period of time “with the right to return to employment upon the expiration of leave.” By its terms, the rule does not appear to encompass those employees whose status is “suspended without pay,” given that those employees who are suspended without pay do not necessarily have the right to return to employment upon expiration of leave. Rule 6.50*+ also provides that an application for charter school leave shall be provided to the teacher’s principal at least 45 days before the beginning of the school year. For teachers on suspension without pay or who are not assigned to a particular school, there is no principal to whom the application can be given. The rule does not specify an alternative. Instead, Mr. Clements stated that it would be up to Ms. Jones (and presumably, anyone in her circumstance) to ask where to submit an application for charter school leave. The School Board interprets rule 6.50*+ as applying to all employees, regardless of their status. Rule 6.50*+ does not indicate what criteria would be used for determining if an employee’s application for leave should be granted. Mr. Clements testified that the decision is made on a case-by-case basis. He also testified that had Ms. Jones applied for charter school leave, he would not have recommended that her request be approved, because as a teacher on unpaid suspension, she is not in good standing with the School District. Nothing in rule 6.50*+ alerts Ms. Jones, or any other teacher in her circumstances, that her suspension without pay would be a basis for disapproval of an application for charter school leave. Nothing in the rule alerts any applicant of the criteria to be considered for the grant or denial of a requested leave of absence. The consideration of a staff member’s current disciplinary status is not an unreasonable consideration for the Superintendent or for the School District. It is not, however, included in the rule as a basis for deciding whether a request for charter school leave should be approved or denied.
The Issue The first issue in this case is whether, as the district school board alleges, a middle school teacher had a consensual sexual relationship with a teenage student; if this allegation is proved to be true, then it will be necessary to decide whether the school board has just cause to fire the teacher.
Findings Of Fact Parties. The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. Respondent Mariella Brenlla ("Brenlla") holds a Florida Educator Certificate. She is certified in Emotionally Handicapped, Reading, and Educational Leadership. Brenlla also holds a National Board of Education certification in exceptional needs. She was employed as a teacher in the Miami-Dade County Public School System for nearly 18 years, from 1992 until November 2009, at which time the School Board suspended her without pay and gave notice that it intended to dismiss her for cause, giving rise to the instant proceeding. During the 2001- 02 school year, which is the period relevant to this case, Brenlla taught students who, having been diagnosed as Severely Emotionally Disturbed ("SED"), received special education services in the Exceptional Student Education ("ESE") program at Ponce de Leon Middle School ("Ponce de Leon"). Allegations and Investigation. In May 2006, a former ESE student of Ponce de Leon named J. B. sent Brenlla an e-mail inviting her to attend his high school graduation. Although she had not heard from him in nearly four years, Brenlla knew J. B. because she had been his "confidant" (her word) during the better part of 2002; their relationship, the nature of which is at the heart of the instant dispute, had begun when J. B. was a 14-year-old eighth grader who attended class in a room adjacent to Brenlla's, and ended about midway through J. B.'s freshman year of high school. Brenlla did not reply to the electronic invitation, and she did not go to J. B.'s graduation ceremony. On October 23, 2006, J. B. sent Brenlla another e-mail. In this message, J. B. demanded that Brenlla call him "ASAP" on a matter of "the utmost importance." He added, "I have terrible news for you." Concerned, Brenlla called. When they spoke, J. B. told Brenlla that he wanted to see her. Brenlla expressed her unwillingness to meet with J. B. Then J. B. revealed the "terrible news": he was thinking about disclosing that he and Brenlla had had a sexual affair in 2002. Brenlla instructed J. B. not to call or contact her again. J. B. did not accede to Brenlla's directive. He sent more e-mails, and placed more phone calls to Brenlla. On October 24, 2006, Brenlla filed a report with the Miami-Dade Schools Police, complaining that J. B. had made threatening comments to her, such as "start saying goodbye to your family." On November 2, 2006, J. B. filed a complaint with the Coral Gables Police Department, alleging that, in 2002, while he was in middle school and, later, high school, he and Brenlla had been involved in a consensual sexual relationship which had begun shortly after spring break and continued until around December. On November 16, 2006, J. B. gave a sworn statement that detailed the numerous and diverse sexual activities in which, he claimed, he and the teacher had engaged. The police commenced an investigation. On November 21, 2006, the detective in charge directed J. B. to place a telephone call to Brenlla, which the police would record, in hopes that J. B. might coax Brenlla into making some incriminating comments. The controlled call was made but failed to produce any unambiguously inculpatory remarks. During the brief conversation, Brenlla neither admitted nor denied the existence of a previous sexual relationship; her unremarkable responses to J. B.'s questions can be construed as being consistent with either possibility. In sum, the digital recording of this call, which is in evidence, is not probative one way or the other. Another attempt to trick Brenlla into incriminating herself was made a few months later. On February 6, 2007, the police equipped J. B. with a "wire" (some sort of recording device) and instructed him to approach Brenlla in the school parking lot, where he was supposed to initiate a conversation about their sexual relationship. This plan came a cropper because, rather than talk with J. B., who accosted Brenlla as she was getting into her car after work, Brenlla insisted that J. B. leave the school premises (on which he was trespassing), and she called the school police. Arrest and Prosecution. On February 21, 2007, J. B. informed the police (for the first time) that Brenlla had a mole or freckle near her vagina. Armed with this information, the police eventually obtained a search warrant, which was issued on August 9, 2007. The warrant authorized detectives to inspect and photograph Brenlla's pubic area. Law enforcement officers executed the warrant and, as the resulting pictures (which are in evidence) show, Brenlla does have a nondescript pigmented spot in the vicinity of her vagina. Soon after the service of the search warrant, Brenlla was arrested and charged with four felony counts of sexual battery on a minor. The criminal prosecution of Brenlla ended when she entered into a Pre-Trial Diversion Program, which required that she plead guilty to a misdemeanor charge of child abuse (no harm) and agree not to take a classroom teaching position for the 2009-10 school year.1 Holding up its end of the bargain, the state entered a nolle prosequi on the felony charges. As far as the record in this case shows, Brenlla is no longer in jeopardy of being prosecuted for crimes she might have committed in connection with her relationship with J. B. The Operative Historical Events. Credibility and Weight of the Evidence. The operative historical facts——especially the nature of the relationship between Brenlla and J. B.——are sharply disputed. Moreover, the gravamen of the School Board's case being that Brenlla had sexual relations with an underage student, the conduct in question is the kind which occurs in private, unobserved by disinterested eyewitnesses. Resolving disputes of fact in a case such as this largely boils down to determining which of the only two witnesses who really know for sure what happened is the more believable. Having listened carefully to and closely observed J. B. and Brenlla at final hearing, the undersigned found Brenlla to be, on balance, the better witness. For the most part, her demeanor was poised and professional; the content of her testimony (with a couple of significant exceptions) is reasonable; she seemed responsible and mature, her denials of wrongdoing sincere. The undersigned wanted to believe her, because the behavior of which she is accused is so reckless and outrageous (not to mention criminal), and she appeared to be none of those things. J. B., in contrast, while appropriate in demeanor and articulate in speech (though glib at times), made a less favorable impression. In part this was because he occasionally came across as vindictive. But also, and more important, the content of J. B.'s testimony has elements that seem, on the surface at least, to be fictional or (as Brenlla contends) fantastic; that——coupled with the fact that J. B.'s story, like a snowball rolling downhill, has gotten bigger and gathered additional details as it moves forward through time——casts doubt on his veracity. Were this case merely a "swearing contest" between Brenlla and J. B., therefore, Brenlla would have won. There are, however, some pieces of circumstantial evidence that corroborate J. B.'s testimony and tip the balance in favor of his version of the relevant events. These will be discussed next. J. B.'s Knowledge of Brenlla's Inconspicuous Mole. J. B. told the police that Brenlla had a mole near her vagina, and this turned out to be true. Thus, either J. B. made a lucky guess, or he somehow had learned about this personal detail concerning Brenlla's body. The undersigned considers the first possibility to be too remote to credit: if J. B. were clever enough to gamble that Brenlla would be found to have a mark in her pubic area, he also would have been aware that sending the police on a wild goose chase which proved him wrong would leave his credibility in tatters. More likely, therefore, is that J. B. knew about the mole, and the undersigned so finds. The question then is: how he know? The simplest (and hence most likely) explanations are: (a) somebody with personal or secondhand knowledge told him; (b) he saw a photograph of Brenlla in a state of undress; or (c) he saw the mole in person. Brenlla's explanation that J. B. might have overheard her talking about the mole with another teacher, or on the phone making a waxing appointment, strikes the undersigned as highly implausible and is rejected. Of the most obvious explanations for J. B.'s knowledge, the undersigned considers (c) above to be the likeliest possibility, notwithstanding that J. B. did not immediately tell the police about this crucial bit of information, because it is the simplest explanation for which, as will be seen, there is other credible evidence besides J. B.'s own testimony (the believability of which is the point presently under consideration). At bottom, the fact that J. B. knew about the mole near Brenlla's vagina is neither direct nor conclusive proof that he and she had a sexual relationship, as he claims; his knowledge of this intimate detail does, however, corroborate his testimony in this regard. The Telephone Calls. Shortly before the final hearing, the School Board obtained from T-Mobile, U.S.A., Inc., via subpoena, the invoices for J. B.'s cell phone service for the period from May 25, 2002 to July 16, 2002, comprising 53 days (the "First Stage"); and the period from August 26, 2002 to October 12, 2002, comprising 48 days (the "Third Stage"). The evidence does not make clear why there were no invoices for the 40-day period running from July 17, 2002 to August 25, 2002. This middle period for which there are no phone service details will be called the "Second Stage". The invoices show the date, time, and duration of calls to J. B.'s cell phone ("incoming calls"), and calls from J. B.'s cell phone ("outgoing calls"). For each call, whether incoming or outgoing, the bills identify the other party's phone number. At hearing, Brenlla identified two telephone numbers which appear in the bills as being hers. One, she explained, was her home number (a landline), and the other she identified as her work number. Although Brenlla testified that J. B. and other students called her occasionally on her cell phone, she did not volunteer her cell phone number(s) for the relevant periods and was not pressed to do so; thus, no cell-to-cell phone calls are accounted for in the discussion that follows. The undersigned has studied the invoices, and it is no exaggeration to say that they are the smoking gun. For what the bills show is that, during the 101 days they cover, Brenlla and J. B. talked on the phone——a lot. The volume, frequency, duration, and timing of these conversations simply defy innocent explanation. The records show that Brenlla and J. B. had approximately 197 conversations. (This does not include calls of one minute or less, which the undersigned interpreted as mere attempts; there were about 120 of those. Also, the undersigned counted multiple calls as a single conversation if they occurred in rapid sequence, as would happen if a call were dropped or momentarily interrupted from some other reason. Thus, a different reviewer might come up with different numbers at the margins. The undersigned is highly confident, however, that the observations made herein are fair and accurate.) Nearly 80 percent of the documented conversations, or 156 of them, took place during the First Stage, which corroborates J. B.'s testimony that this period corresponded to the most intense stage of his relationship with Brenlla. Combined, these conversations, which occurred during a period of 53 days, consumed approximately 1,451 minutes——about 24 hours in all. Brenlla initiated 138 of these conversations. In other words, Brenlla called J. B. about 88 percent of the time during the First Stage. The frequency of their contact is notable as well. During the First Stage, the pair talked on 46 of the 53 days covered by the bills. The numbers drop significantly in the Third Stage, again corroborating J. B.'s testimony that the relationship began to unravel after he started high school in the fall. In this period there were 41 documented conversations comprising about 303 minutes. Brenlla initiated nearly three-quarters (30) of these calls, continuing the previous pattern of Brenlla being the one who, by far, most often made the first move. The two had conversations on 23 out of the 48 days in this period——a marked decrease in intensity relative to the First Stage. Still, with a phone conversation occurring on average about every other day, the two remained in suspiciously close contact by most reasonable measures, especially in view of the fact that J. B. was now in high school and therefore would have few, if any, school-related reasons to talk regularly with a teacher at his old school. Some further observations underscore the inculpatory nature of these documented calls. Many of them took place during non-business hours (before 9:00 a.m. and after 5:00 p.m.) and on weekends. Approximately 19 percent——nearly one in five—— occurred between 9:00 p.m. and midnight, hours during which a teacher rarely should have a legitimate pedagogical reason for calling a student. Another 26 percent, roughly, or about one quarter, of the conversations were held between 5:00 p.m. and 9:00 p.m. Five percent or so of the calls took place between 6:00 a.m. and 9:00 a.m. While the majority of the conversations (102) took place on weekdays, of which 69 fell during the covered periods, the couple spent more time on the phone (957 minutes vs. 749 minutes) during the 29 weekend days than on regular workdays. There were, in addition, seven conversations totaling 48 minutes during three holidays, i.e. Memorial Day, Independence Day, and Labor Day. Brenlla testified that she called J. B. because she was concerned about his transition to high school, which she asserted could be difficult for SED students such as J. B. to make, and because she had become J. B.'s confidant, someone he trusted and with whom he could share his secrets. These explanations do not hold water and are rejected. The available records show that Brenlla was contacting J. B. almost literally around the clock, day and night, constantly, even on weekends and holidays. (Remember, too, that Brenlla's cell phone number was not disclosed; it is possible that the over-the-top degree of telephonic contact between her and J. B. as revealed above was in fact even higher. Moreover, there is no reason to suppose that Brenlla and J. B. stopped talking on the phone during the 40 days between the First Stage and the Third Stage. To the contrary, it is probable that there was a substantial amount of contact between the two during the Second Stage, for which records are not available.) The telephone records do not prove the content of the conversations between Brenlla and J. B., nor do they establish that the two had a sexual relationship. The records are circumstantial evidence of a very close and probably intimate personal relationship, however, and as such they not only provide some independent support for the finding above regarding how J. B. likely came to know about Brenlla's mole, but also they corroborate J. B.'s testimony that he and Brenlla engaged in a consensual sexual affair. The Affair. At the beginning of the 2001-02 school year, Brenlla administered a standardized test to determine J. B.'s abilities in reading, math, and basic humanities. This was how Brenlla first met J. B., who was at the time a 14-year- old, eighth grade SED student in the ESE program at Ponce de Leon. Though J. B. was not one of Brenlla's students, his teachers' (he had two) classroom was next door to the classroom in which Brenlla and another teacher taught their SED students. As the school year progressed, Brenlla became better acquainted with J. B. because he and other SED students occasionally would visit her classroom during the "free period," usually on Fridays, when ESE students who had completed their assignments and otherwise behaved themselves were rewarded with time to enjoy nonacademic activities. Brenlla taught J. B. how to play chess, and he assisted her with classroom chores. The relationship between Brenlla and J. B. became increasingly personal. One Friday shortly after spring break, Brenlla invited J. B. to have an online conversation with her that night via instant messaging. He agreed. An IM chat was attempted but failed due to computer problems, forcing J. B. and Brenlla to communicate by telephone. This led to a lengthy session of "phone sex." Thereafter, Brenlla and J. B. became physically intimate. J. B. testified that he and Brenlla engaged in a variety of foreplay in Brenlla's classroom. J. B. claimed that these encounters occurred before class, at lunchtime, and after school, two or three times a day, nearly every day. The undersigned, however, credits Brenlla's testimony regarding the unlikelihood of this much contact going unnoticed, given the proximity of other adults, the fact that the SED classrooms were never locked, and the generally high level of supervision to which SED students are subjected. J. B.'s account more likely than not is exaggerative. Nevertheless, even after discounting J. B.'s testimony for probable embellishments, the undersigned finds that, more likely than not, Brenlla and J. B. found ways to engage in furtive kissing and petting in moments when no one was around. While such moments probably did not arise as frequently as J. B. recalls, it is likely (and thus found) that the couple grabbed opportunities to disappear briefly from time to time. J. B. testified that he and Brenlla frequently engaged in oral sex (fellatio and cunnilingus) in her car after school. While some aspects of J. B.'s testimony in this regard are difficult to believe——such as that Brenlla sometimes parked her car in residential neighborhoods, where the two would engage in oral sex and, on occasion, nearly be caught——the undersigned considers it likely, and finds, that, among other sexual activities, J. B. and Brenlla performed oral sex on one another many times inside her vehicle. J. B. testified that he and Brenlla often had "phone sex." J. B. did not define "phone sex," but the undersigned reasonably infers, from the totality of J. B.'s testimony and the plain meaning of the term, that the phone sex in question entailed conversations having explicit sexual or erotic content. The undersigned credits J. B.'s testimony in this regard, which is corroborated by the cell phone bills discussed above, and finds that Brenlla had phone sex with J. B. on numerous occasions. J. B. claimed that he and Brenlla engaged in sexual activities in his apartment, and that it was at this location that they had anal and vaginal intercourse, but only a few times. J. B. testified that these trysts occurred during the day when his father was at work and his mother out running errands. J. B.'s mother, however, testified that she saw Brenlla leaving the apartment on some occasions, and was aware that her son was involved in a sexual relationship with the teacher. The undersigned doubts the reliability of the mother's testimony but finds that, more likely than not, Brenlla visited J. B. at his apartment once or twice and had sexual intercourse with him there. The sexual affair between Brenlla and J. B. continued through the summer months following the 2001-02 school year and even after J. B. started high school in the fall of 2002. Gradually, though, the relationship began to fizzle out. With J. B. attending a different school, the two saw each other less frequently, and they began to fight and argue on the phone. In or around December 2002, Brenlla expressed her desire to end the relationship. The two would have no more contact for nearly four years, until May 2006, when (as found above) J. B. sent Brenlla an e-mail asking her to come to his high school graduation. Determinations of Ultimate Fact The greater weight of the evidence establishes that Brenlla engaged in a consensual sexual relationship with a 14- year-old SED student that lasted for more than six months and included numerous instances of intimate physical contact in addition to many hours of documented telephonic contact. Based on this course of conduct, it is determined that Brenlla is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6B-4.009(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Mariella Brenlla's employment in the Miami-Dade County Public School System. DONE AND ENTERED this 18th day of October, 2010, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 18th day of October, 2010.
The Issue This case concerns the propriety of Respondent's abolishment of Petitioner's position of Occupational Specialist within the Gilchrist County School System. In particular, it is to be determined whether Respondent has failed to meet requirements of law in that its action of abolishing the position was arbitrary and capricious and contrary to Petitioner's constitutionally protected rights to free speech and assembly.
Findings Of Fact Petitioner is the holder of a Rank 111 Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the petitioner that occasioned the formal hearing in this cause. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor. Around the beginning of April 1982, the superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding. In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Hell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor. Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the two principals on the question of the financial position of the school system facing the advent of the 1982-83 school year. Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school, as contrasted to the half- time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner. After receiving the comments of the principals and in keeping with his choice, the Superintendent of schools wrote to the petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83 that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the Superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982- 83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a 3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teacher's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu of the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Bad Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately 65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist. In the 1982-83 School year, employees in the school system received salary increases. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of 500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly constituted school board charged with operating, controlling, and supervising all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as a teacher in the Miami-Dade County Public Schools District pursuant to a professional services contract. In the 2011-2012 school year, Respondent was employed as a science teacher at Homestead Middle School. In the 2012-2013 school year, until she was suspended pending the outcome of this proceeding, Respondent was employed as a math teacher at the Alternative Outreach Program, 5000 Role Models location.1/ At all times relevant to these proceedings, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Events Giving Rise to these Proceedings The 2011-2012 School Year Respondent began teaching eighth grade science at Homestead Middle School ("HMS") in August 2011. The 2011-2012 school year for students began on August 22, 2011. The workday hours for teachers at HMS for the 2011-2012 school year were from 7:25 a.m. to 2:45 p.m., Monday through Friday. The persuasive evidence establishes that Respondent was informed of this schedule when she was interviewed for her teaching position, and again so informed during the first faculty meeting of the school year. Pursuant to the UTD contract, the teacher work hours per day in the Miami-Dade Public Schools consist of seven hours and 20 minutes, including a one-hour planning period. The UTD Contract provides that teachers may, with the approval of the work-site administrator (i.e., the principal) modify their workday schedule, such as adjusting the beginning time of the teacher's workday, provided that such modification does not interfere with the overall number of hours worked. This provision affords a principal the authority and discretion to modify a teacher's workday schedule. The student school day hours for HMS began at 7:35 a.m., when the first bell rang and students began entering their classrooms, and ended at 2:20 p.m. Students were to be in their classrooms by 7:40 a.m. for a homeroom period, immediately followed by the first instructional period consisting of a literacy block. The student school day schedule is set by the Miami-Dade County School Board and the school principal is not authorized to change it. Pursuant to HMS's established procedure, if a teacher was going to be absent, he or she must call the absence hotline at least 30 minutes prior to the start of the teacher workday. Shortly after the beginning of the 2011-2012 school year, Respondent began being tardy to work. HMS Principal Rachelle Surrancy or one of the HMS assistant principals would note Respondent's arrival time, either by being in the front of the school when she arrived2/ or by having to open the door to her classroom to let her homeroom class students in if she arrived after the late bell had rung. Surrancy verbally reminded Respondent of the school's starting time, then held an informal meeting with her on or about September 7, 2011, to remind her of the same. Respondent's young son suffers from a range of significant health conditions, including asthma, gastrointestinal reflux, apnea, pneumonia, lactose intolerance, allergic rhinitis, and eczema. He requires extensive care for these conditions, and Respondent was required to administer breathing treatments and other care on a daily basis. During flare-ups of her son's conditions, Respondent needed to take medical leave to provide that care. On or about September 20, 2011, Respondent submitted to Surrancy an Intermittent Leave Request Medical Certification form under the Family and Medical Leave Act ("FMLA") (hereafter "FMLA Form")3/ requesting approval for Respondent to periodically take leave due to the intermittent illness of her young son. The FMLA form was completed and signed by Respondent's son's physician. Based on the child's medical history, the physician estimated that Respondent would need to take FMLA leave every two to three months, for a period lasting two to three days. Notwithstanding Surrancy's admonitions, Respondent continued to be tardy to work. During the first 25 days of the school year, Respondent was tardy 16 of those days. Most of the tardies entailed an arrival time of between two and five minutes late, but some entailed arrival times as much as 25 to 35 minutes late. When Respondent arrived after 7:40 a.m. (15 minutes late), her colleagues in the science department were placed in the position of having to cover her class until she arrived. As a result of Respondent's continued tardiness, on September 28, 2011, Surrancy issued a Punctuality to Work Directive ("Directive") to Respondent regarding her punctuality and attendance.4/ The Directive reminded Respondent that punctuality and attendance were essential components of her teaching position, and that as a faculty member, she served as a role model to other employees and student. Respondent was apprised that she was to arrive at work on time and sign in daily by 7:25 a.m. If she was going to be tardy, she was to communicate that to an assistant principal or to Surrancy. Surrancy explained that compliance with these directives was necessary to prevent adverse impact to the students and their academic progress, to ensure continuity of the educational program, and to maintain effective worksite operations. The memo advised Respondent that she could obtain assistance to facilitate her punctuality. Respondent was notified that noncompliance with the directives would be considered a violation of professional responsibilities and insubordination. Respondent told Surrancy that the reason she was tardy was that she had to take her son to his daycare center. The daycare center did not open until 7:00 a.m., making it difficult for her to arrive at HMS by 7:25 a.m. due to the commute in morning traffic. On October 5, 2011, Surrancy evaluated Respondent's instructional performance for the 2011-2012 school year pursuant to the Instructional Performance Evaluation and Growth System ("IPEGS"), the system used in the Miami-Dade County Public School District to evaluate instructional personnel. Surrancy rated Respondent as "effective" for each IPEGS standard other than Performance Standard ("PS") 7, "Professionalism."5/ For that standard, she rated Respondent's performance as "unsatisfactory" on the basis that due to her tardies, Respondent violated the School Board's Code of Ethics and Standards of Ethical Conduct policies.6/ After the September 28 meeting, Respondent continued to be tardy, so on October 10, 2011, Surrancy again met with her. Respondent explained that each day, her son required a breathing treatment regimen that she had to administer and that she had to take her son to daycare. Respondent told Surrancy that she planned to enlist the assistance of a friend to take her son to daycare so that may assist her to arrive on time.7/ Surrancy offered to adjust Respondent's workday schedule to allow her to arrive five minutes later to accommodate her travel time from her son's daycare to HMS, contingent on Respondent arriving at work by 7:30 a.m. However, Respondent continued to be tardy, at times arriving later than 7:30 a.m. Surrancy held a follow-up meeting with Respondent on October 25, 2011, at which she notified Respondent that the adjusted workday schedule no longer was in effect and that she was again required to arrive at 7:25 a.m.8/ In the meantime, Respondent sought to transfer to a school having a workday schedule with which she could more easily comply, given her son's daycare start time and her travel time. She was offered, but declined, a position at Redland Middle School, which entailed a teaching assignment that was out of her field of certification. Respondent declined the position because it did not meet the condition of her loan forgiveness program that the assignment be in a critical subject area——such as science and math——and because she did not believe she would be as proficient a teacher in teaching out of her subject area. Following the October 25 meeting, Respondent continued to be tardy. Several of these tardies necessitated coverage for her homeroom class. On December 14, 2011, Surrancy held a Conference-for- the-Record ("CFR") with Respondent to address her continued tardiness. By that time, Respondent had been tardy 45 days since the beginning of the school year, and several of these tardies necessitated coverage of her homeroom class by her colleagues. Surrancy informed Respondent that her tardies had adversely affected the educational program and services provided to students. Respondent was again directed to be punctual and in regular attendance, to communicate any intent to be tardy before 7:00 a.m. by calling the assistant principals or her, and to provide physician documentation and/or recertification of her FMLA form as needed if she was going to use FMLA leave to cover her tardies. Respondent was provided copies of Petitioner's policies on Standards of Ethical Conduct, Code of Ethics, and Leaves of Absence; Department of Education rules 6B-1.001 and 6B- 1.006; another copy of the FMLA for recertification by her physician; and other documents to inform and assist Respondent in addressing her tardiness problem. Respondent was informed that noncompliance with the directives would constitute insubordination and compel district disciplinary action. Respondent continued to be tardy. Again, several of these tardies necessitated coverage of her homeroom class. On February 13, 2012, Surrancy conducted another CFR with Respondent. As of that date, Respondent had been tardy 69 days since the beginning of the 2011-2012 school year. Surrancy issued Respondent the same directives previously given and again furnished Respondent copies of pertinent School Board policies, applicable Department of Education rules, and other informational documents. Surrancy informed Respondent that failure to comply with these directives would constitute gross insubordination and necessitate further disciplinary action. Respondent explained that her tardiness was due to a variety of factors, including having to perform breathing and other medical treatments on her son and taking him to daycare. She expressed concern at having to call in by 7:00 a.m. if she was going to be tardy because, for unforeseen reasons such as her son's daycare being late in opening, she may not know whether she was going to be tardy until after 7:00 a.m. Surrancy informed Respondent that under any circumstances, calling in did not excuse tardiness. Respondent requested that Surrancy assign her homeroom to another teacher and allow her to report at 7:45 a.m., when her science classes commenced. Surrancy refused. As a result of Respondent's continued tardies, Surrancy determined that her conduct constituted insubordination and noncompliance with applicable School Board policies. Surrancy issued a written Reprimand to Respondent on March 5, 2012. The Reprimand directed Respondent to adhere to school board policies, be punctual, and call Surrancy or an assistant principal before 7:00 a.m. if she were going to be tardy. Respondent nonetheless continued to be tardy, necessitating another CFR, which was held on March 29, 2012. By this time, Respondent had been tardy 86 days and absent 8.5 days in the 2011-2012 school year. During the CFR, Respondent provided two FMLA leave request forms completed by her son's treating physicians certifying the frequency and duration of her son's flare-ups that necessitated leave. One of these, dated March 6, 2012, stated that flare-ups occurred at a frequency of every one to two months for a duration of two to three days, while the other, dated February 20, 2012, stated that the flare-ups occurred approximately once a month and did not specify a duration. Under any circumstances, Respondent was tardy more frequently than the number of days of leave documented as necessary by either of these FMLA forms. Respondent again was given directives, which included those previously provided regarding punctuality and attendance, calling in by 7:00 a.m. if tardiness was anticipated, physician documentation for leave requests, performance of her teaching duties, comporting herself in a manner that reflected credit on herself and Miami-Dade County Public Schools, and adherence to School Board policies and applicable Department of Education rules. Respondent was again provided copies of the policies, rules, and other documents previously given to her. Respondent was offered the option of resigning her position but declined. Surrancy recommended that Respondent be suspended from her teaching position. However, Respondent was not suspended during the 2011-2012 school year.9/ Although Respondent's tardiness during the 2011-2012 school year required coverage of her homeroom class by colleagues on several occasions, she did not miss any classroom instructional time.10/ 2012-2013 School Year For the 2012-2013 school year, Respondent was hired as a math and science teacher in the Educational Alternative Outreach Program's ("EAO") credit recovery program. She was assigned to the EAO's 5000 Role Models location. In this assignment, Respondent taught between 12 and 15 students in grades six through eight. The 5000 Role Models facility was located between 35 and 40 miles from Respondent's home. She had a commute of between one hour ten minutes and two hours one way from her home to 5000 Role Models. The teacher workday hours for this location were 8:20 a.m. to 3:40 p.m. Respondent was informed of this schedule when she was interviewed by EAO Principal Claire Warren, and by letter from Warren regarding her projected teaching assignment for the 2012-2013 school year. Warren credibly testified that at the time she was interviewed, Respondent did not express any concerns regarding this schedule. The student school day at 5000 Role Models started at 9:00 a.m. Shortly after the school year commenced, Respondent began being tardy. During the first week of the students' school year, Respondent was tardy twice, approximately 20 minutes each time. On August 31, 2012, Warren issued Respondent a written memorandum reminding her of the directives that were issued the previous school year and directing her to be punctual and in regular attendance; call before 8:00 a.m. to notify either Warren or the assistant principal if she was going to be absent or tardy; provide physician documentation for absences and tardies due to illness; timely submit updated FMLA forms if anticipated illness or tardies covered under the FMLA are anticipated; adhere to all School Board policies; and perform her job responsibilities. Respondent was placed on notice that noncompliance with these directives would constitute gross insubordination and would necessitate notification of the Office of Professional Standards for the imposition of discipline. Respondent continued to be tardy. As of October 1, 2012, Respondent had been tardy eight times11/ and absent three days.12/ On some of the days she was tardy, Respondent did not call to notify the administration, as she had been directed to do; on other days, she sent text messages but did not call. Warren conducted another conference with Respondent on October 1, 2012. She issued another memorandum documenting Respondent's tardies since the beginning of the 2012-2013 school year, reiterating the directives previously issued on August 31, and notifying Respondent that failure to comply with the directives would constitute gross insubordination. Warren also provided a letter to Respondent regarding FMLA coverage of her tardies and absences. The letter informed Respondent that only absences, i.e., time away from the worksite, and not tardies were covered by the FMLA, and that it was her responsibility to notify the school if she were going to be absent pursuant to an FMLA-certified illness event. Attached to the letter was an FMLA Form to enable Respondent to update her FMLA-covered illness certification as necessary. Respondent's tardies continued. She was tardy on October 2, 5, 8, and 9——on some of these days as much as 45 to 70 minutes late. On the days when she was tardy by 40 or more minutes, she missed classroom instructional time and her students had to be placed in another teacher's classroom. On October 10, 2012, Petitioner took action to suspend Respondent for 30 workdays without pay,13/ for gross insubordination and for violating School Board policies regarding the Code of Ethics (policy 3210), Standards of Ethical Conduct (policy 3210.01), and Leaves of Absence (policy 3430), and rules 6B-1.001, 6B-1.006, and 6B-4.009.14/ Respondent served her suspension and returned to work on November 26, 2012. On that day, she was 11 minutes tardy; the following day, she was 40 minutes tardy. On November 29, 2012, Warren issued another memorandum to Respondent reiterating the directives previously given on August 31 and October 1. Respondent was informed that her failure to comply with the directives would constitute gross insubordination and would necessitate referral to the Office of Professional Standards for further discipline. Respondent continued to be tardy. In December 2012 and January 2013, Respondent was tardy 13 days, two of which required coverage of her class. Respondent did not call in to the school to notify them of her anticipated tardiness but she did notify the school by text message on some of these occasions. On February 1, 2013, Respondent was notified of a CFR scheduled for February 5, 2013. On February 4, 2013, Respondent notified Warren by electronic mail that she would not be at school that day or the following day. On February 6, 2013, Respondent notified Warren by electronic mail that she was taking a leave of absence "for at least the next few weeks." She also informed Warren that her absences the previous two days had been due to her own illness. Respondent did not submit a leave request form to Warren prior to taking sick leave. Respondent did submit a Leave of Absence Medical Documentation Form to the Miami-Dade County Public Schools Office of Retirement/Leave/Unemployment Compensation ("Leave Office") on February 5, 2013, containing her physician's certification that she was ill and recommending a leave of absence from February 4, 2013, to March 1, 2013. Because she was requesting approval of leave for less than 30 days' duration, under the UTD Contract, Respondent should have filed her leave request with Warren rather than with the Leave Office. UTD Contract Article XIV, section 2, paragraph A., governing notification in the event of teacher absence, states in pertinent part: When a teacher, for whom an emergency temporary instructor is employed, will be absent from work, due to illness or injury or due to personal reasons, he/she shall notify the supervising administrator (or designee), as soon as possible, but no later than one hour before the start of his/her scheduled workday, in order that an emergency temporary instructor can be employed or other arrangements made. If said absence/leave is for a specified period of time, no further notice is necessary. In the event of a change in this specified period of absence, the employee will proceed, pursuant to the stipulations herein. Where an absent teacher does not notify his/her supervising administrator, as stipulated herein, and where there are not extenuating circumstances, as determined by the supervising administrator, such teacher will have the option to utilize personal leave or leave without pay. However, such determination by the supervising administrator shall not be made arbitrarily. UTD Contract, art. XIV, § 2.A. (emphasis added). Article XIV, section 10, governs sick leave without pay for illness. Paragraph C. of that section states: "[e]mployees whose illness requires an absence of over 30 days must file an application for extended sick leave indicating the anticipated length of such absence and supported by a statement from competent medical authority." This leave request would be filed with the Leave Office. However, because Respondent did not request sick leave for a period exceeding 30 days, this provision was not applicable to her leave request. Notwithstanding, Respondent's leave request was reviewed by a medical consultant for Miami-Dade County Public Schools and ultimately was denied. Apparently, some time elapsed before the Leave Office forwarded Respondent's leave request and denial decision to Warren. Warren testified: "I didn't get the request until much afterwards, you know, after she had been out several days " Even after Warren received Respondent's leave request form and denial from the Leave Office, more time passed before she notified Respondent. It was not until March 1, 2013, that Warren sent Respondent a letter informing her that her leave request had been denied and that her absences for the entire month of February were unauthorized, thus warranting her dismissal on the basis of job abandonment. At approximately the same time Warren notified Respondent that her leave request was denied, Warren also notified Respondent, by separate email, that she had incorrectly submitted her leave request to the Leave Office, instead of submitting it to her (Warren). On the same day that Warren notified Respondent that her leave request had been denied, Respondent submitted another leave request form and a medical documentation form to Warren, retroactively requesting approval of her sick leave taken between February 4 to March 18, 2013, due to her own illness. Warren denied the request that same day, citing the medical consultant's determination as the basis for the denial. Warren's letter did not cite an independent basis for the denial. Petitioner did not present any competent evidence regarding the specific basis for the medical consultant's determination to deny the request. Respondent returned to work on March 4, 2013. She was tardy that day and the following day. On March 6, 2013, a CFR was held. The CFR originally had been scheduled for February 5, 2013, but when Respondent took leave, it was rescheduled. At the meeting, Respondent was apprised that her tardies and absences were excessive and that they, along with her failure to adhere to the other previously issued directives, constituted gross insubordination. On March 13, 2013, Petitioner took action to suspend Respondent without pay and terminate her employment as a teacher. Respondent's Criminal History Petitioner presented evidence that in August 2012, a records check for Respondent was generated after information was received from Petitioner's Fingerprinting Office indicating that Respondent had been arrested in January 2011 for violation of a protective injunction and in July 2011 for battery. However, this evidence consisted solely of hearsay. Petitioner did not present any non-hearsay evidence establishing that these arrests occurred. Respondent denied that she was arrested in January 2011. She acknowledged that she was arrested for battery in July 2011. She testified, credibly, that the arrest occurred over the July 4th holiday and that she timely reported this arrest by calling Petitioner's instructional staffing office. Respondent credibly testified that the charge was not prosecuted and ultimately was dismissed. Petitioner did not present any competent or credible evidence to refute Respondent's testimony on these points. Respondent's Defenses Respondent asserts that she was not tardy as frequently in the 2011-2012 school year as Petitioner asserts. She questions the accuracy of Surrancy's and others' recordkeeping regarding her tardiness. However, she did not present any specific evidence to show that Petitioner's records of her tardiness in the 2011-2012 were inaccurate; thus, her position on that point is essentially speculative. She also claims that Surrancy did not treat her fairly or equitably during the 2011-2012 school year. Specifically, she asserts that Surrancy had the authority and flexibility to adjust her workday schedule so that she did not have to cover a homeroom class, thus allowing her to arrive at work later, but that Surrancy unfairly chose not to do so. Respondent further asserts that Surrancy had provided such accommodation to another teacher in a previous school year. Thus, Respondent claims that Surrancy treated her unfairly.15/ However, Surrancy testified, persuasively, that she could not have relieved Respondent of having a homeroom in order to enable her to arrive later in the workday because instructional personnel, other than coaches and co-teachers, were assigned homeroom or other professional duties that required them to be at school during regular workday hours. Thus, there was no one else available to assume Respondent's homeroom class responsibilities.16/ Respondent also asserts that Surrancy treated her disparately and unfairly by singling her out for discipline for her tardies, while not disciplining others who also were often tardy. However, even if that were the case, it does not excuse Respondent's tardies or provide a basis for Surrancy to decline to enforce school policies with respect to Respondent. Respondent also asserts that she was not afforded the FMLA leave to which she was legally and contractually entitled. Specifically, she argues that she filed FMLA leave forms stating the need for intermittent leave to care for her son, so that for the days on which she was tardy, the number of minutes by which she was tardy should have been counted as leave under the FMLA. Respondent testified, credibly, that she did not purposely refuse to follow the directives given her by Surrancy, Warren, and the Office of Professional Standards, and that her tardies during both school years were the result of her having to provide medical care for her young son and take him to daycare, then commute in heavy traffic to the worksites. Moreover, to the extent Petitioner claimed that Respondent was insubordinate because she did not adhere to directives to call the school if she was going to be tardy, Respondent credibly countered that she often would call in, only to be put on hold for some time and then told that the administrator she was attempting to reach was not available; thus, she started sending text messages instead to ensure that her message was received. Regarding the arrest reporting issue, Respondent denied that she was arrested in January 2011, and testified that she timely reported her July 2011 arrest to the appropriate authority. Findings of Ultimate Fact In these consolidated proceedings, Petitioner seeks to suspend Respondent without pay and terminate her employment17/ as a teacher on the basis of just cause——specifically, gross insubordination and misconduct in office.18/ As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that Respondent committed the violations of section 1012.33 and rules 6A-5.056; and 6B-1.001 and 6A-10.080; and 6B-1.006 and 6A-10.081. Gross Insubordination Pursuant to the foregoing findings of fact, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent's conduct in accruing an extensive number of tardies during the 2011-2012 and 2012-2013 school years constituted gross insubordination. Although Respondent did submit leave request forms estimating the frequency and duration of FMLA-covered leave she would need in order to care for her son, the evidence shows that she was tardy far more frequently than supported by any of the forms she submitted. In order to accommodate an employee's FMLA request, Petitioner must be able to rely on the information the employee provides on the FMLA leave form. If the information provided on the form is inaccurate, Petitioner is neither required nor authorized to consider undocumented time away from the work site as leave covered under the FMLA.19/ While it is admittedly difficult to precisely predict when illness will occur, under any circumstances, the forms Respondent submitted did not cover the frequency of her tardies incurred in the 2011- 2012 and 2012-2013 school years.20/ As addressed above, it appears that Respondent was the victim of a coalescence of unfortunate personal circumstances that interfered with her employment. Nonetheless, the fact remains that she was repeatedly put on notice by Surrancy, Warren, and the Office of Professional Standards that her continued tardiness would constitute gross insubordination. Any measures that Respondent purportedly took to rectify the circumstances, such as enlisting the help of a friend to take her son to daycare, apparently were unsuccessful. Respondent had the option in the 2011-2012 school year to transfer to another school to address the morning commute issues, but she chose not to. Although she had legitimate personal and professional reasons for choosing to remain at HMS, the fact remains that she elected not to pursue a course of action that may have addressed the problematic circumstances she found herself in. Under these circumstances, the undersigned concludes, albeit reluctantly, that Respondent's conduct——which took place over a period of two school years, after frequent admonitions, and after she had been placed on notice several times that her continued conduct would constitute gross insubordination——does, in fact, constitute gross insubordination. With respect to Respondent's absences in February 2013, the evidence indicates that Petitioner's Leave Office and Principal Warren unnecessarily delayed notifying Respondent that her leave request for February 2013 had been denied. The evidence gives rise to the inference that Respondent may have cut her leave short and returned to the work site had she been timely informed that her request had been denied. Moreover, Petitioner presented no competent evidence regarding the specific basis for the Leave Office's denial of Respondent's request, or for Warren's denial of Respondent's retroactive request on the same basis. Under these circumstances, the undersigned determines that Respondent's absences for the month of February 2013 should not be considered unexcused. However, even without considering these absences, Respondent's repeated tardiness over an extended period of time without proper leave documentation and after extensive prior notice of the consequences, is sufficient to establish gross insubordination. Misconduct in Office As more fully discussed below, Petitioner proved, by a preponderance of the evidence, that Respondent committed misconduct in office under both versions of rule 6A-5.056 in effect in the 2011-2012 and 2012-2013 school years, respectively. Specifically, Respondent's frequent and repeated tardiness during the 2011-2012 school year violated the Code of Ethics in the Education Profession because her conduct caused her to lose the respect and confidence of her colleagues. In particular, Respondent's frequent tardiness substantially undermined Surrancy's confidence in her reliability, and, thus, impaired her effectiveness in the school system. Respondent's frequent and repeated tardiness over the course of the 2012-2013 school year also constituted misconduct in office. Again, she violated the Code of Ethics in the Education Profession by failing to maintain the respect and confidence of her colleagues. Respondent's frequent tardiness adversely affected Warren's confidence in her reliability. Additionally, on the days when Respondent's tardiness necessitated her students being moved to another teacher's classroom, her students' learning environment was disrupted, and her own ability and that of her colleagues to effectively perform their duties was reduced. As a result, Respondent's effectiveness in the school system was impaired. Petitioner also charged Respondent with violating Policy 3210, Standards of Ethical Conduct, which provides that all employees are representatives of the Miami-Dade County School District and requires employees to conduct themselves in a manner that will reflect credit upon themselves and the school system. Respondent's frequent tardies over an extended period of time gave the appearance of disregard for school policies and did not reflect credit on her or on the school district. Moreover, Respondent did not protect her students from conditions harmful to learning on the days when they had to be moved to another teacher's classroom due to her tardiness.21/ Accordingly, Respondent violated Policy 3210. Respondent also violated Policy 3210.01, Petitioner's Code of Ethics. As found above, she did not protect her students from conditions harmful to learning on the days when she was so tardy that they had to be moved to another classroom. However, Respondent did not violate Policy 3430, Leaves of Absence. For the reasons discussed above, Respondent's absences in February 2013 should not have been determined unexcused; thus, she did not violate Policy 3430. Respondent also did not violate Policy 3121.01, Employment Standards and Fingerprinting of Employees. To the extent Petitioner argues that Respondent lacks good moral character based on having been arrested, Petitioner did not present any competent evidence regarding her arrests or failure to timely report them as required by school board policy. Respondent acknowledged that she had been arrested in July 2011 but testified that she had timely reported it, and that the charge ultimately was dismissed. Petitioner did not offer any competent evidence22/ to counter Respondent's testimony, which is deemed credible and persuasive. Factual Basis for Recommended Sanction The persuasive evidence establishes that Respondent did not purposely set out to violate school policies and Department of Education rules, but that circumstances coalesced such that Respondent found herself in the extremely difficult position of having to care for her very ill son and take him to daycare, then undertake a lengthy commute in morning traffic, without enough time to accomplish both. As unfortunate and trying as those circumstances were, they do not excuse Respondent from complying with the crucial and reasonable requirement that employees arrive to work on time.23/ Nonetheless, the evidence establishes that Respondent is an innovative, proficient teacher in the critical subject areas of science and math, and that she cares about performing her job well——to the extent that she declined an out-of-field teaching assignment, in part due to concern that she would not perform effectively in that assignment. As such, it is reasonable to infer that under less demanding circumstances, such as having a shorter commute or a later workday starting time, Respondent would perform her teaching duties proficiently and professionally. The circumstances in this case warrant upholding Respondent's suspensions without pay commencing on October 11, 2012, and ending on November 26, 2012, and commencing on March 13, 2013, through the summer vacation following the 2013- 2014 school year, and denying back pay for the full period of her suspension. However, given the very trying circumstances Respondent faced in the 2011-2012 and 2012-2013 school years, and because the evidence indicates that under less oppressive circumstances Respondent likely would be an innovative, proficient, and professional teacher, the undersigned believes that terminating Respondent's employment would be excessively harsh and that Petitioner would lose a good teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order upholding Respondent's suspensions without pay commencing on October 11, 2012, and ending on November 26, 2012, and commencing on March 13, 2013, through the summer vacation following the 2013-2014 school year; denying back pay for the full period of her suspension; and reinstating Respondent's employment as a teacher at the start of the 2014- 2015 school year. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 31st day of March, 2014
The Issue Whether or not the Respondent student, Rommel Luis Montes, should be assigned to the J. R. E. Lee Center, an opportunity school.
Findings Of Fact Respondent Rommel Luis Montes, age fifteen, was a student at Riviera Junior High School (Riviera) in Dade County, Florida, during the school years 1984-85, 1985-86, and 1986-87. During the 1984-85 school year Respondent's academic performance was very poor. He received five failing grades, passing only the subject of physical education with the grade of C. Also his ratings for effort during the four marking periods of that year were poor. The result of Respondent's lack of effort and poor academic performance was his not being promoted to the next grade. During the 1985-86 school year Respondent's academic performance was also poor. During that year he received poor ratings for effort, a D as a final grade in five subjects and the grade of F in two subjects. Respondent did not improve his academic performance during the 1986-87 school year. During the first grading period of that year, Respondent received grades of F in three subjects, grades of D in two subjects and one incomplete grade which subsequently was changed to an F. As before, Respondent's rating for effort was poor. Mrs. Carol Ann Golden, a math teacher, had Respondent as a student during the first marking period of the 1986-87 school year. While enrolled in that class, Respondent refused to do any work. Most of the time he would come to class without materials, he would rarely do homework and less than 10 percent of the time did he perform any class work. He had unexcused latenesses and out of forty-five school days he was absent twenty. In efforts to discourage tardiness, Mrs. Golden would issue detentions to Respondent (requiring him to stay in school after hours), but he would either serve them late or not at all, in defiance of school personnel authority. Those times when Respondent was issued indoor suspensions (CSI) as a disciplinary measure, he would refuse to do any work. Mrs. Deanna A. Villalobos, a history teacher at Riviera, also had Respondent as a student during the 1986-87 school year. Here again Respondent's behavior was the same: he would come to class without materials 70 percent of the time, hardly did any homework, performed approximately 5 percent of the work assigned in class, had approximately twenty absences (including one instance when he failed to return to class after lunch), was frequently tardy, would spend his time day dreaming and looking out the window, and as a result failed all the history tests administered. Respondent was also issued detentions by Mrs. Villalobos which he failed to serve. It is the practice at Riviera for teachers and school administrators to submit written reports relative to troublesome student behavior. Such reports are prepared on forms called Student Case Management Referral Forms (SCMRF) and are generally reserved for serious behavior problems. Mrs. Golden and Mrs. Villalobos each issued two SCMRFs on Respondent regarding, inter alia, his total lack of interest in school and failing grade average. In addition Respondent received five other SCMRFs from a different teacher. In addition to Respondent's lack of interest in school, these reports also complained of his skipping class, excessive talking in class, leaving class without permission, and simply refusing to do any work in class. As a counselor at Riviera, Mrs. Waizenhofer worked on a weekly basis with Respondent. From her testimony it was apparent that Respondent, although not a bad kid, was disinterested in school and was not responding to the various techniques used by teachers, counselors and administrators to make students more interested and improve their academic performance. During one counseling session Respondent, while in tears, promised Mrs. Waizenhofer to improve his school effort just a little. Twenty minutes later, Respondent was caught cutting class. One attempt at interesting Respondent in school, was to place him in the work experience program at Riviera. This consisted of securing employment for Respondent at Burger King on a part-time basis. Respondent was not able to hold the job for more than two weeks and he failed the program. Mrs. Thomas, assistant principal, and Mrs. Waizenhofer had numerous conferences with Respondent's mother. The parent, however, was not able to cause a change in Respondent's attitude toward school. It was recommended to both Respondent and his parent that assistance be sought at different community agencies, which could provide specialized counseling services at little or no cost. Despite the efforts made by the school administrators, no change was noted in Respondent. At Riviera, like other schools with regular school programs, the average number of students in a class is about thirty. Such schools are not geared to address peculiar student needs or provide individual students with continuous special attention. By contrast, at an opportunity school, such as the J. R. E. Lee Center, the ratio of teachers to students is about nine-to- one, students are the subject of individualized educational plans, and there are more counselors on staff, including a psychologist. The expert opinions of both Mrs. Thomas and Mrs. Waizenhofer was that the more structured environment at an opportunity school would be better for Respondent, as opposed to permitting him to remain in a regular school program where he was making no progress.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order affirming the assignment of Respondent Rommel Luis Montes to the J. R. E. Lee Center. DONE AND ORDERED this 17th day of March, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 17th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0294 Petitioner's proposed findings of fact 1-12, have been adopted in paragraphs 1-12, respectively. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Mrs. Estrella Montes 10030 Southwest 43rd Street Miami, Florida 33165 Dr. Leonard Britton, Superintendent Dade County Public Schools The School Board of Dade County, Florida 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Madelyn P. Schere, Esquire Assistant School Board Attorney Board Administration Building, Suite 301 1450 Northeast Second Avenue Miami, Florida 33132
