The Issue The issue is whether Juan Jiminez should be assigned to J.R.E. Lee Opportunity School-South?
Findings Of Fact Juan is an 8th grade student at the Citrus Grove Middle School in Dade County, Florida. According to the school records, Juan has been involved in a number of instances of misconduct. On January 12, 1988, he received a referral to the school office for generally disruptive conduct, defiance of school authority, and excessive tardiness. On January 14, 1988, he received another referral for general disruptive conduct, and received in-school suspension. On March 9, 1988, he was involved in a fight, was suspended from the school grounds, and a letter concerning the matter was written to his parents. After he returned to school, on March 21, 1988, he again received a referral for disruptive behavior, followed by another suspension on April 18, 1988, for generally disruptive conduct and defiance of school authority, for which he received an in-school suspension. On May 2, 1988, he received a referral for cutting classes, which resulted in a conference with his parents. He received another referral on May 6, 1988, for general disruptive conduct and excessive tardiness, for which he received an in-school suspension. As the result of his poor performance during the 1987-88 school year, at the beginning of the 1988-9 school year in September of 1988, Juan was selected for participation in a drop-out prevention program, known in the Dade County schools as the Student At Risk Program (SARP). As a result of, the referral, a multi-disciplinary child study team considered his record. It was recommended to Juan's mother that Juan be placed in an opportunity school, but she resisted the suggestion, and the school's administrators agreed to continue the placement at Citrus Grove Middle School while Juan participated in the SARP program. In that program, Juan would be in small classes (usually 18-20) students in order to provide him additional attention. The school and the parents have been working, to some extent, at cross purposes. The parents regard Juan as a good child because he was not a gang member. The school was not concerned because they thought Juan was a member of a gang, but because of his disinterest in his subjects, and his cutting classes, being tardy, or acting out in class which inhibited not only his learning, but that of other students in the class. Even in the SARP program, Juan's situation did not improve a great deal. On November 15, 1988, he received another disciplinary referral for general disruptive conduct, for which he received a reprimand. On November 23, 1988 he received another referral for fighting, and he was suspended from the school grounds. On January 25, 1989, he received a referral to the administration from his reading teacher in the drop-out prevention program, Ms. Jane Liberman. Juan and two friends had come in late, been disruptive in class, and disturbed other students. He was reprimanded and given detention. Juan's excessive absences resulted in a home visit by W. Chester on March 8, 1989. The school administrators hoped for behavioral improvement following the visit, but Juan's behavior did not improve. Juan received at least three more disciplinary referrals that year for disruptive conduct, defiance of school authority, and for cutting class. Juan's disruptive behavior continued in the 1989-90 school year. On September 21, 1989, he received a disciplinary referral from Ms. Sonia Alcazar, his math teacher, for arriving late, being disruptive in class, using foul language, and making fun of the teacher. September 21, 1989, was only his fourth day in math class. He had come to school on September 5, 1989, but then had cut class until September 19, 1989. He attended on the 19th, 20th, and 21st, when the disciplinary referral occurred. Juan needs the increased structure and discipline that is available for students disinterested in education and which is offered at an opportunity school. That program should assist him academically. His current pattern of conduct is a substantial disruption which inhibits other students in his classes at Citrus Grove Middle School from taking advantage of instruction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the assignment of Juan Jiminez to the J.R.E. Lee Opportunity School-South be upheld. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March, 1990. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1990. COPIES FURNISHED: Frank R. Harder, Esquire 2780 Galloway Road, Suite 100 Twin Oaks Building Miami, Florida 33165 Gladys Jiminez 1512 Northwest 25th Avenue Miami, Florida 33125 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether Amanda’s Childcare and Preschool is subject to a civil penalty and licensure action for failing to comply with staff-to-student ratios and for having tools on the daycare playground, in violation of Florida Administrative Code Rules 65C-22.001(4) and 65C-22.002(1)(a), and chapter 402, Florida Statutes.
Findings Of Fact Respondent is licensed by the Department to operate a facility known as Amanda’s Childcare & Preschool located at 123 West Rhode Island Avenue, Orange City, Florida 32763. Respondent is owned by Joseph Corneck. During the morning of January 28, 2013, Mr. Corneck was working on the construction of a climbing apparatus in a playground at Respondent’s daycare facility. There were no children playing on the playground at the time of Mr. Corneck’s construction activities. Rather, there were 20 kindergarten-aged children inside an adjacent classroom while Mr. Corneck was outside working. Near lunchtime, Ms. Carolyn, a staff member who was supervising the classroom, lined the children up so that they could use the two available bathrooms and wash up for lunch. Because of crowding by the number of children lining up for only two bathrooms, Ms. Carolyn asked seven boys in the group to line up outside the classroom along the exterior wall near the door adjacent to the playground. Ms. Carolyn asked Mr. Corneck to assist in watching the boys while they were in line. Mr. Corneck left the apparatus that he was working on, which was approximately 30 feet away, and came over to the boys to watch over them while they were in the line. Mr. Corneck left the tools that he was working with, consisting of a hammer and a cordless drill gun, back on a platform of the apparatus. The platform where he left the tools was approximately four to six feet high. He also left the materials he was working with and a ladder near the apparatus. While Mr. Corneck was watching the boys, Department family services counselor Kalyn Yeager stopped by for a routine inspection. She noticed the boys outside the classroom and apparently concluded that they had access to the tools and materials. Mr. Corneck, however, did not allow the boys to play on the playground that day. There is no evidence that the children were allowed access to the tools or playground apparatus, and there is insufficient evidence to suggest that the children otherwise had access to those tools or materials, or that they were ever in danger or potential danger because of his construction activities. After the inspection, Ms. Yeager had a conversation with Mr. Corneck in which he advised that he had shown some of the day care students how to use tools. Mr. Corneck, however, never told Ms. Yeager that he had given a demonstration to the kindergarten-aged children who were present on the day of the inspection. Rather, his reference to a tool demonstration was about another occasion or occasions when he had demonstrated the use of tools to some of the older boys in Respondent’s after- school care. At the final hearing, Ms. Yeager could not recall the number of children who were there the day of her inspection. The evidence is otherwise inadequate to show that Respondent violated any applicable staff-to-child ratio standards. In sum, the Department failed to prove the alleged violations set forth in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED 15th day of October, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 15th day of October, 2013.
The Issue Whether Petitioner is disqualified from employment in positions requiring him to work with children or the developmentally disabled and, if so, whether he is entitled to an exemption from such disqualification.
Findings Of Fact Petitioner's employer, Youthland Academy Child Care Facility, is a day care facility that works with children. The employer submitted Petitioner's name to Respondent for a background screening pursuant to Section 402.305(2)(a), Florida Statutes. The background screening reflected that Petitioner had an extensive arrest record between June 1983 and January 1999. The screening also reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on April 25, 1994. The underlying offense was an act of domestic violence against the person of April Cox (the mother of a child by Petitioner) on November 17, 1994. The screening further reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on November 6, 1997. The underlying offense was an act of domestic violence against the person of Tanya Anne Austin (also the mother of a child by Petitioner) on June 15, 1997. A charge of violating an injunction against domestic violence was nolle prossed as part of a plea agreement. On April 21, 2000, Respondent attempted to notify Petitioner in writing that he may be ineligible for continued employment in a position of special trust working with children or the developmentally disabled because of the acts of domestic violence on November 17, 1994, and June 15, 1997. That certified mailing was not picked up by Petitioner. Thereafter, on June 5, 2000, Respondent re-mailed the notification letter to Petitioner at his place of employment. The notification letter advised Petitioner of his rights to an exemption hearing, but required that he request such hearing within 30 days from his receipt of the letter. The notification letter also advised Petitioner that he could request a formal or informal hearing to challenge the accuracy of his criminal record. As of August 10, 2000, Petitioner had not responded to Respondent's letter of June 5, 2000. On that date, Ms. Barton advised the director of Youthland Academy that Petitioner had been disqualified from working with children or the developmentally disabled. On August 16, 2000, Petitioner responded to Ms. Barton's letter stating that he had misunderstood the notification letter, that he wanted to explain the circumstances of the two incidents of domestic violence, and that he wanted a hearing. Petitioner did not dispute the accuracy of his criminal record at the final hearing. Although Petitioner presented testimony as to the circumstances involved in each conviction at issue in this proceeding, that evidence merely confirmed that each incident constituted domestic violence. Petitioner failed to establish that he should not be disqualified from working with children or the developmentally disabled, that he has been rehabilitated since his last criminal conviction, and that he would not present a danger if continued employment is allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner is disqualified from working with children or the disabled. It is further RECOMMENDED that the final order find that Petitioner is not entitled to an exemption from that disqualification. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of February, 2001. COPIES FURNISHED: Kalvin T. Davis 2100 Northeast Third Court Boynton Beach, Florida 33435 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Virgina A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner, Palm Beach County School Board (Petitioner or School Board), has just cause to discipline the employment of Rebecca Sorensen (Respondent or Ms. Sorensen) based on the conduct alleged in the “Petition.” Also at issue is the appropriate penalty, if any.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Palm Beach County, Florida. Respondent has been an employee of the Petitioner since 1987. At all times relevant to this proceeding, Respondent was an assistant principal employed by Petitioner at Hagen Road, which is a public elementary school in Palm Beach County, Florida. Petitioner’s Policy No. 5.30 requires that, “(a) District employees who know or have reasonable cause to suspect, that a child is an abused, abandoned, or neglected child shall immediately report such knowledge or suspicion to the Department of Children and Families’ [sic] Florida Abuse Hotline (1-800- 96ABUSE, 24 hours a day)." Section 39.201(1)(a), Florida Statutes, provides, as follows: (1)(a) Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child's welfare,[1] as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2). (b) Reporters in the following occupation categories are required to provide their name to the hotline staff: * * * School teacher or other school official or personnel; Respondent’s position as an Assistant Principal at Hagen Road is included within the definitions of school personnel for purposes of Section 39.201(1)(a), Florida Statutes. The requirement to report suspected child abuse was reiterated in the Faculty Handbook for Hagen Road for the 2008- 09 school year. Cheri Rosen is the assistant director of Hagen Road’s after school care program. Ms. Rosen’s son and Student J. were in the fifth grade during the 2008-09 school year and have been friends since their first grade year. Labor Day fell on September 1 in 2008. On August 28, 2008, the Thursday prior to Labor Day, Student J. spent the night at Ms. Rosen’s house because his grandfather was hospitalized for medical tests. Student J. told Ms. Rosen’s daughter of an incident that occurred in December 2007, while Student J. was being baby-sat at his grandfather’s house, by the male counselor from the Hagen Road after school care program. Ms. Rosen’s daughter immediately told her father (Mr. Rosen) who instructed his daughter to tell her mother (Mrs. Rosen). Immediately after her daughter talked to her, Ms. Rosen asked that Student J. come tell her firsthand what had happened. Student J. told Ms. Rosen that while he was being baby- sat by the male counselor at his grandfather’s house in December 2007, just before winter break, the male counselor had taken a live snake and wrapped it around his (the male counselor’s) penis and told Student J. to look. Student J. told Ms. Rosen that he looked and then looked away. Student J. related that the male counselor told Student J. “now its your turn.” Student J. told Ms. Rosen that he said no and walked out of the room. Ms. Rosen told Student J. that she was going to have to tell his grandfather about the incident, and that she was also going to report this to Ms. Lamb, who was Ms. Rosen’s supervisor at the after school care program. Ms. Rosen spoke to Ms. Lamb shortly after her conversation with Student J. Ms. Lamb advised Ms. Rosen that she should tell the Student J.’s grandfather that he should contact the police. She further told Ms. Rosen, incorrectly, that she did not have to go through the school because the alleged incident occurred at the residence of Student J.’s grandfather, and because Student J. reported the incident at her home. Two days after Ms. Rosen’s conversation with Student J., his grandfather returned home from the hospital. Ms. Rosen and her husband visited with the grandfather and related to him the incident as Student J. had related it to them. The grandfather, who tried to remain calm because he has a heart condition, asked what he should do next. Ms. Rosen told him he had to go to the police. When Ms. Lamb returned to school on September 2, 2008, she had a voice mail from Student J.’s grandfather. She tried to return the call, but she could not reach him. On Thursday, September 4, 2008, Respondent was paged by a Ms. Ciavolino, the school treasurer and bookkeeper. Ms. Ciavolino related that Student J.’s grandfather had just called, told her about the incident, and said that he wanted advice from Respondent. Shortly thereafter on September 4, 2008, Student J.’s grandfather called Respondent to talk with her about the incident. The grandfather was hesitant, so Respondent told him what Ms. Ciavolino had told him, and Respondent also told him that she knew he wanted advice. After the grandfather confirmed what Ms. Ciavolino had related to her, Respondent advised the grandfather that the incident needed to be reported right away. She asked the grandfather where he lived in an attempt to determine whether the Delray Beach Police Department (DBPD) or the Palm Beach County Sheriff’s Office would have jurisdiction. She also told him that it would need to be reported to the Department of Children and Family Services (DCFS). Although he remained hesitant, the grandfather told Respondent that he would report the incident. On September 4, 2008, Respondent instructed Ms. Lamb to keep the male counselor away from Student J. and all other students. At that time, the male counselor was preparing to leave in a week or two to join the military. In the interim, he had been assigned to train new counselors, which did not require that he have direct contact with children. The male counselor remained on Hagen Road campus until he was removed as a result of the police investigation that ensued. Other than her instructions to Ms. Lamb, Respondent took no further action to ensure that the male counselor would have no contact with children. Respondent did not report the allegation of abuse to her principal (Mr. Hughes), to any law enforcement agency, or to the DCFS. Further, she did not instruct Ms. Rosen, Ms. Lamb, or Ms. Ciavolino to file any type of written report.2 Respondent testified that she did not feel she had to file a report because Student J.’s grandfather agreed to file a report. Respondent further testified that she did not feel she had to file a report because she heard of the allegations from the grandfather and not the student. On September 9, 2008, Student J.’s grandfather reported the incident to the DBPD which immediately began an investigation in conjunction with a DCFS investigator. As a result of the DBPD/DCFS investigation, Mr. Hughes learned of the allegations and immediately barred the male counselor from the school campus. Thereafter, Petitioner’s Police Department began its own investigation of Respondent based on her conduct and failure to act as described in this Recommended Order. All relevant procedural steps were taken by Petitioner in bringing these charges against Respondent. Part of the procedure requires a pre-disciplinary meeting at which the subject of an investigation is given the opportunity to give his or her version of the events. Respondent declined to attend the pre-disciplinary meeting on advice of counsel because at the time of the meeting a criminal investigation was being conducted.3 After the pre-disciplinary meeting, the matter was referred to Petitioner’s Employee Investigatory Committee (EIC),4 who recommended that the subject charges be brought against Respondent with the recommended disposition of a ten-day suspension of employment without pay. That recommendation was forwarded to Dr. Johnson in his capacity of Superintendent of Schools, who agreed with the recommendations of the EIC and submitted the recommendation to the School Board. On April 8, 2009, the School Board voted to accept the recommendation, subject to Respondent’s rights pursuant to the provisions of Chapter 120, Florida Statutes. The greater weight of the credible evidence established that Respondent had a reasonable basis to believe that Student J. had been subjected to sexual abuse and that she did not report that abuse to her principal, the FDCS hotline, or law enforcement. The greater weight of the credible evidence also established that Respondent took insufficient steps to protect Student J. from the male counselor after she learned of the allegations of abuse. In reaching this finding, the undersigned has considered that Principal Hughes barred the male counselor from school premises as soon as he learned of the allegations. Respondent did not bar the male counselor from the school premises, but merely instructed Ms. Lamb to make sure that the male counselor “. . . would not be with children until this was resolved.”5 Respondent’s employment has not previously been disciplined. Other than the facts set forth above, Respondent has been, in the words of Principal Hughes, a fantastic assistant principal who has performed above expectations.6
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order suspends Respondent’s employment without pay for a period of ten days. DONE AND ENTERED this 18th day of November, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 November, 2009.
The Issue Whether the Respondent's termination of employment as a guidance counselor should be upheld.
Findings Of Fact O'Connor is a long-term employee of the School Board. She supported herself while obtaining her master's degree in counselor education and was continuously employed by the School Board as a counselor since 1986. Over the course of her employment she has served successfully as a guidance counselor at three schools under five principals. During her tenure at Salaxy Elementary, she was honored as The Palm Beach Post's "Teacher of the Week." Up until 1997, O'Connor enjoyed a professional period she calls "the golden years." Her description of an idyllic, "almost like a private practice in an elementary school," is supported by the consistently glowing performance reviews she received throughout that period from all persons designated by the School Board to perform her annual evaluations. The golden years began to come to an end for O'Connor with the arrival of a new principal, Debra Johnson (Johnson). By the spring of the 1996-97 school year, relations between O'Connor and Johnson were strained. Johnson found it necessary to reprimand O'Connor for occasional tardiness, and on May 27, 1997, O'Connor received the first negative evaluation of her career. Johnson prepared the evaluation, which reflected unsatisfactory performance in two areas: "develops and maintains an accurate record keeping system"; and "adheres to and enforces school policies." The negative evaluations in these areas reflected Johnson's concern over O'Connor's failure to provide guidance and mediation logs as requested and her failure to submit certain pre- and post-test results which needed to be sent to the Department of Drug-Free Schools pursuant to grant requirements imposed upon the School Board. The 1997-98 School Year On March 2, 1998, O'Connor was appropriately reprimanded for making unethical statements to a student. The reprimand grew out of an incident in which O'Connor, angered by the fact that parents had called Johnson to complain about O'Connor's alleged failure to provide services to a student, confronted the student and made highly inappropriate comments, including that the student was trying to get [O'Connor] fired. On March 11, 1998, Johnson conducted her second formal evaluation of O'Connor. This time, three areas of concern were noted: "management of counseling sessions"; "demonstrates self control"; and "adheres to and enforces school policies." On April 20, 1998, O'Connor was scheduled to conduct a student mediators' training session between nine and ten a.m. While conducting rounds that day, Johnson found O'Connor playing solitaire on the computer in her room. Asked whether she had conducted the mediators' group, O'Connor lied to her principal. O'Connor's conduct on April 20 appropriately resulted in a three-day suspension without pay beginning August 12, 1998. The 1998-1999 School Year Throughout the period of time during which O'Connor's performance reviews began to deteriorate and disciplinary actions increased, O'Connor was experiencing medical problems which ultimately led her to request and receive a medical leave of absence for the fall, 1998 semester. O'Connor maintains that her medical difficulties, which included brain surgery in 1995, have no bearing on her job performance. O'Connor contends her work was unaffected by her medical issues, and there was no evidence to the contrary. During O'Connor's medical leave, Lisa Bentolila (Bentolila) was hired as an interim guidance counselor. Bentolila discovered serious record-keeping violations committed by O'Connor. Correcting the problems consumed the time of Bentolila and at least two supervisors. In January 1999, O'Connor returned to Orchard View. She continued her traditional counseling schedule, which included classroom guidance, and individual and small group counseling sessions. The evidence suggests that Johnson was not enthusiastic about O'Connor's return, but the evidence is not sufficient to establish O'Connor's theory that by this time, if not earlier, Johnson had conceived a "conspiracy" to fire O'Connor, and had enlisted other School Board personnel to assist her in achieving that goal. On Johnson's request, a formal observation on March 8, 1999, was conducted by Dr. Jeanne Burdsall (Burdsall), who watched O'Connor conduct a small group counseling session and teach a classroom guidance lesson. Burdsall prepared a report which noted five areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; and "action development and planning skills." The report also set forth an improvement strategy as to each area of concern. Burdsall observed a disturbing pattern of obliviousness by O'Connor to student behaviors and comments which cried out to be decisively dealt with, but were instead ignored by O'Connor, or met with inappropriate responses. Misconduct was a serious problem during Burdsall's observation periods. The misbehavior was exacerbated, and perhaps provoked, by O'Connor's inability to effectively manage the sessions by starting on time with clear and succinct goals, rules and expectations; by dealing with negative behavior at its inception; and by communicating and reinforcing appropriate messages keyed to the theme of the lesson, and drawing the students out on pertinent issues and then taking advantage of the information they provided to make the lesson meaningful to them. O'Connor failed to address several instances of students' fighting with one another, as well as student comments which required attention, such as one little girl who yelled out, "I'm crazy enough to jump off a roof." O'Connor would abruptly move from one discussion to another, making it impossible for the children to receive effective guidance counseling. On April 14, 1999, Johnson conducted another observation. On that day, her concerns included: "poor concept development"; "excessive teacher talk"; "failure to provide children an opportunity to respond"; and "failure to use age appropriate vocabulary". The combined observations of Burdsall and Johnson were reduced to a formal evaluation scoresheet on April 15, 1999. Six areas of concern were noted: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; "action development and planning skills"; and "develops and maintains an accurate record keeping system." This unsatisfactory evaluation resulted in O'Connor being placed on school-site performance probation beginning on April 15, 1999 and ending June 2, 1999. Under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, on-site performance probation affords 30 calendar days to improve performance to a satisfactory level, as well as improvement strategies geared to her specific deficiencies. On May 6, 1999, Dr Ann Lynch (Lynch), a professor at Florida Atlantic University in the Counselor Education Department, who has provided workshops and some observations of counselors for the Palm Beach County School District, conducted, at the School Board's expense, an extended one-on-one workshop with O'Connor on counseling skills covering three areas of concern: "development of rapport"; "interpersonal skills"; and "problem clarification." O'Connor was cooperative and receptive to numerous suggestions provided by Lynch during the workshop. However, at the next observation, conducted by Johnson on May 20, 1999, the principal saw no evidence that O'Connor had profited from the workshop; the deficiencies observed in April still remained. A similar conclusion was also reached by Sandra Cunningham (Cunningham) of the Department of Student Services, who also observed O'Connor on May 20, 1999. Cunningham's specific areas of concern were: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; and "interpersonal skills." In particular, Cunningham noted that while O'Connor was able to establish initial rapport with the students, she could not maintain it throughout the session. She had a hard time pacing the lesson; was unable to engage the students; ignored some of the students; did not respond with consistency to children's misconduct; and would be sarcastic to the children, in violation of the most basic precepts of counseling. Cunningham provided O'Connor with improvement strategies, including reviewing a group counseling book, specifically looking at hints for leading groups, and proposing that O'Connor videotape herself and review it with a colleague. On June 2, 1999, Johnson again observed O'Connor in a regular classroom session. During this session, O'Connor's failure to appropriately manage student misbehavior resulted in an ineffective counseling session for all the children. Throughout the various observations and conferences which made up the 30-day school-site assistance plan, O'Connor professed understanding of the criticisms leveled against her and stated that she had already corrected the problems, as observers would see for themselves at subsequent observations. Yet, the same deficiencies consistently appeared. O'Connor had an additional opportunity to improve during the summer months. She was provided with a schedule of summer remediation activities and reference materials reasonably calculated to help her improve her performance. O'Connor claimed she was unable to avail herself of any of these materials and activities due to transportation issues. Yet, the uncontroverted evidence is that O'Connor failed to contact Johnson to ask for assistance in obtaining these resources despite Johnson's numerous offers to help. The 1999-2000 School Year On September 3, 1999, a meeting was held with O'Connor regarding the status of the school site-assistance plan. The discussion included information concerning future observations and what kind of assistance would be required and provided. On September 10, 1999, Cunningham observed O'Connor teaching a third and a fourth grade classroom guidance lesson. In addition she observed O'Connor counseling an individual student. In a memorandum to Johnson summarizing the observations, Cunningham's comments were consistently positive. She was able to conclude that O'Connor's performance was at all times effective. Johnson was encouraged about O'Connor's future. On September 16, 1999, Johnson again observed O'Connor. At that time, the progress Cunningham had observed was not evident to the principal. The following day, she prepared a report to the Superintendent in which she indicated six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills”; and "develops and maintains an accurate record keeping system.” Based on this report, O'Connor was placed on a so- called 90-day plan. In fulfillment of the requirements of Section 231.29, Florida Statutes, and under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, a 90-day plan affords time to improve performance to a satisfactory level, as well as improvement strategies geared to the employee's specific deficiencies. Employees subject to a 90-day plan have a right to request to be reassigned to another school. O'Connor timely exercised this right, but the request was denied by the School Board. In spite of, or perhaps because of, the difficulties O'Connor was having with her regular duties, Johnson elected to make a significant change in O'Connor's job duties with the adoption by the school of a so-called "intensive guidance model." The model, which was adopted without input from O'Connor, has a stated goal of assisting students to "learn appropriate social skills and conflict resolution skills in order to reduce their discipline concerns." Children assigned to the program had repeated issues regarding solving conflict, anger management, not being able to make friends or self-defeat. The program concept was to place these children together in a class to learn new skills in making friends, anger management, etc. There were approximately four to five children in such a class. Johnson assigned O'Connor to run this program four days a week during the fall of 1999. On the fifth day, she was to provide small-group or individual counseling. O'Connor viewed the program with great suspicion. She believed it was a glorified "in-school suspension" for the children, and, more fundamentally, an effort to place her in a situation in which she would fail. On October 14, 1999, Lynch observed O'Connor during a classroom guidance program of third and fourth grade classrooms. In the third grade classroom, the children were not consistently on task. It became obvious that O'Connor had prepared for the wrong session, mistakenly thinking she had been to that class the week before. In addition, O'Connor failed to establish rapport with the children at the expected level. Similar deficiencies were observed in the fourth grade class. O'Connor failed to advise students of the rules on confidentiality, together with their limitations, applicable to the class. This is a fundamental ethical duty of counselors, and Lynch had reviewed this requirement with O'Connor during her one-on-one workshop. Asked why she did not review these limitations with the children, O'Connor stated "she forgot to do it." Also on that day, Lynch observed O'Connor ask a teacher to see a child she had been counseling. The child came out to the hallway and stated several times that he wanted to go back in his classroom. After a couple of questions, O'Connor allowed the child to return to his classroom. No effective counseling took place during O'Connor's interaction with this child; moreover, it is generally inappropriate to conduct counseling sessions in a school hallway. On November 9, 1999, O'Connor received a written notice of verbal warning regarding her inappropriate and unprofessional language while on duty with students. Specifically, O'Connor contacted the school office over the public address system and stated in the presence of her students that she needed help or she was going to hit one of them; in addition, she used profanity in the presence of her students during that session. On November 19, 1999, Johnson observed Respondent in the classroom. During this observation, O'Connor failed to deliver a clear lesson, failed to give the students adequate opportunity to participate, and did not address resistance by the students. On December 13, 1999, Dr. Lynch again held a one-on- one group counseling session with O'Connor. Topics were geared to the now-familiar litany of complaints by observers and included: "working with the children"; "how to structure a group"; "what kinds of rules to establish"; "how to discuss confidentiality"; "what were the different skills needed"; "linking the children together"; "other techniques like role- playing"; and "age-appropriate activities and how to close a group." In addition, Lynch provided books and other materials on group counseling and showed O'Connor a video of what counselors actually do. As in the past, O'Connor was enthusiastic and receptive to the information. Cunningham returned to observe O'Connor on December 15 and 16, 1999. O'Connor's work on those days was in stark contrast to her largely good performance during Cunningham's observation on September 7, 1999. Cunningham's December observations included findings that O'Connor failed to clearly state the goals of the group; she used sarcasm and belittling remarks such as "That is why you are in this group;" she had trouble enforcing rules and monitoring behavior or in some instances, ignored behavior, resulting in many of the students being bored or acting out. On January 5 and 6, 2000, Burdsall observed O'Connor conducting a group counseling session and presenting a classroom guidance lesson. During these sessions, Burdsall did not observe effective guidance counseling. A particularly egregious lapse of professional judgment occurred when two first-grade boys came in to O'Connor's classroom. She turned to one of the boys and said "Your mother called, and she's getting a divorce." O'Connor said to the other boy,". . . your mother said that your family left Texas, and they left your father there 'cause he couldn't get along . . ." The boys looked at her, stunned. There is ample evidence that this was inappropriate and did not constitute competent guidance counseling. On January 19, 2000, Johnson again observed O'Connor and again saw failure to manage the classroom properly and to address misconduct. All observations were conducted by trained professionals in accordance with lawful standards, and were timely reviewed with O'Connor. O'Connor never disagreed with the substance of the evaluations and feedback she received. Rather, she would say such things as she was "correcting that behavior" or "Oh, yeah, wait 'til you see next time, I've already corrected that so when you come in, you're going to see this." However, there was never any consistent and significant improvement. By the time of the January 21, 2000, assistance review meeting, Johnson had appropriately concluded that O'Connor still exhibited significant deficiencies and would be recommended for termination. Notwithstanding Johnson's recommendation, on April 14, 2000, the parties entered into an agreement pursuant to which O'Connor released all legal claims against the School Board, and in exchange was provided an additional 90 days to remediate the noted deficiencies. During this second 90-day plan, O'Connor once again timely asserted her right to request a transfer to another school. Once again, the School Board refused the request, without explanation. For the second 90-day plan, O'Connor was given the opportunity to select some of the individuals who would observe her and provide assistance. The observation and assistance team for the second 90- day plan consisted of a diverse group of qualified professionals. Lynch remained and provided continuity. Johnson continued to participate until she was replaced as principal by Linda Nelson (Nelson); Susan Atherley, Ron Armstrong, and Dr. Gregory Brigman (Brigman) were added to the team and the new principal also had the opportunity to conduct her own observations. At the School Board's expense, Brigman provided a one day, one-on-one "supportive training" workshop again geared to the six deficiencies for which termination had initially been recommended. The 2000-2001 School Year On August 22, 2000, Brigman conducted the first observation of the new school year and again found that O'Connor failed to adopt the strategies provided to her during training, and was essentially operating at the same level she had since 1997. O'Connor's difficulties in managing her workload also continued into the new school year. On September 13, 2000, Nelson reprimanded O'Connor for failing to have her small groups in place. She was directed to prepare a list of the students needing small group services and to have all groups functioning immediately. In view of the growing consensus that O'Connor was unable to provide effective counseling, it is a mystery why the principal would insist that ineffective or inappropriate services be foisted upon the students most in need of competent professional help. However, this line of inquiry was not pursued by O'Connor in support of her theory that the School Board wanted to get rid of her either because of Johnson's personal animus, or because her medical needs, the substantial expense of which was at least partially borne by the School Board, caused her to be regarded as a liability. On September 28, 2000, O'Connor was again criticized for her record-keeping with a notice that she had failed to update certain legally mandated records known as "504 files." On September 28, 2000, Nelson conducted a formal annual personnel evaluation of O'Connor. Listing the now familiar six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills"; and "develops and maintains an accurate record keeping system," Nelson recommended that O'Connor's employment be terminated. Acting in accordance with Nelson's recommendation, the School Board voted on October 25, 2000, to suspend O'Connor without pay and to terminate her employment effective November 9, 2000.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board issue a final order terminating Leslie O'Connor's employment for unsatisfactory performance as set forth in the Administrative Complaint dated November 7, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 May, 2001. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Glen J. Torcivia, Esquire 1800 Australian Avenue, South Suite 205 West Palm Beach, Florida 33409 Dr. H. Benjamin Marlin, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard Room C316 West Palm Beach, Florida 33406-5869 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
