Findings Of Fact The Respondent, Harvey R. Steckler, holds Teacher's Certificate No. 520419 issued by the State of Florida, Department of Education. This Certificate covers the area of substitute teaching. On February 5, 1985, the Respondent was employed as a substitute teacher at Brownsville Junior High School in the Dade County Public School System. On February 5, 1985, while substitute teaching in a physical education class, the Respondent was conversing with a group of minor male students. During this conversation, a minor female student passed the Respondent and the group of students. While looking at the female student, the Respondent began to make sexual remarks about her. She could hear portions of these remarks, such as "Oh, she's so fine; he had a girl on his boat and liked to eat her out; you wouldn't mind getting to her; he would like to eat her out," and other sexual comments. These remarks were also overheard by the boys in the group, as well as by the female student. The female student went to the school office and told the Principal and the Assistant Principal about the incident. They suggested to her that she write out a report on the incident, which she did. The Respondent's remarks caused the female student to be both nervous and frightened, as well as embarrassed. When the Principal of Brownsville Junior High reported this incident to the Dade County school system, the Respondent was informed that his name had been removed from the approved list of substitute teachers, pending further notice. After an investigation and several conferences, the Respondent's name was permanently removed from the list of authorized substitute teachers in the Dade County public school system. On April 24, 1985, the Respondent appeared before a publicly televised meeting of the school board to appeal the removal, but the school board took no action to reinstate him. The nature of the incident described above, together with the awareness of the incident on the part of students, staff, parents and the community, because of its publicity, so impaired the Respondent's effectiveness as a substitute teacher and as an educator, that the school board could not re-employ him in any capacity in the Dade County public schools.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Teacher's Certificate No. 520419 held by the Respondent, Harvey R. Steckler. THIS RECOMMENDED ORDER ENTERED this 17th day of June 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June 1987. COPIES FURNISHED: William E. Williams, Esquire Post Office Box 1739 Tallahassee, Florida 32302 Mr. Harvey R. Steckler 825 82nd Street Miami Beach, Florida 33141 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney Moenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services Section 319 West Madison Street, Room 3 Tallahassee, Florida 32301 Karen B. Wilde, Executive Director Education Practices Commission Room 418 Knott Building Tallahassee, Florida 32399
Findings Of Fact At all times pertinent to these proceedings, Respondent was employed by Petitioner as a school teacher under a continuing contract of employment. At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control, and supervise the public school system for Dade County, Florida. Little River Elementary School (Little River) is one of the schools in the Dade County public school system. Respondent began working as a classroom teacher for Petitioner during the 1968-69 school year. She has been employed pursuant to a continuing contract since the 1971-72 school year. Throughout her employment with Petitioner, Respondent was frequently absent from her teaching position without approved leave. During the 1981-82 school year Allen Starke was the principal of North Hialeah Elementary School and Respondent was a classroom teacher at that school. Respondent was counseled about her absenteeism on multiple occasions by Mr. Starke during the 1981-82 school year. Mr. Starke observed that Respondent lacked planning and that her class lacked control because of her frequent absences. For the school year 1982-83, Mr. Starke moved Respondent from her regular classroom to a Chapter One class with fewer students. This move was an effort to cut down the number of Respondent's absences. During the school year 1982-83, Respondent took a leave of absence that lasted more than one year. Mr. Starke had no further contact with Respondent after she took her leave of absence. Margaree Raiford became the principal of Little River, which is an inner city school, in January 1990. Respondent was a classroom teacher at Little River when Ms. Raiford came to the school. Ms. Raiford observed that Respondent's behavior was erratic and that she was frequently absent from school. Ms. Raiford was of the opinion that Respondent had become ineffective as a teacher. Because she had come to Little River after the school year was half completed, Ms. Raiford gave Respondent an acceptable evaluation for the 1989-90 school year. On March 28, 1991, Ms. Raiford wrote the following memorandum to Respondent on the subject of excessive absences: Please be advised that you have been absent from the worksite during the 90-91 school year since February 4th for illness. Since your absence from duties adversely impact the educational environment, academic progress of the students and continuity of instruction, you are herein issued the following directives concerning future absences: Absences for illness must be documented by your treating physician and a written medical note presented to this principal upon your return to the site. Upon return to the worksite, you must provide an unconditional medical release to return to full duties. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. (Emphasis in the original.) These directives are in effect upon receipt of this notice and are necessary to prevent adverse impact to students and their academic progress and to ensure continuity of the educational program. Enclosed is a copy of Request for Leave form. You must process the leave papers within forty-eight hours upon receipt of this memorandum. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of disciplinary measures. Ms. Raiford signed an evaluation form for Respondent on May 30, 1991, that covered the 1990-91 school year. She left the evaluation portion of the form blank because Respondent was not at the school site when Ms. Raiford made her formal observation that is part of the evaluation process. Petitioner's Office of Professional Standards was notified of Respondent's absences without leave. On April 17, 1991, Joyce Annunziata, Director of Petitioner's Office of Professional Standards, advised Respondent to schedule a conference with her prior to returning to Little River. The conference was to address Respondent's medical fitness to perform full classroom duties and her future employment status with Petitioner. On May 16, 1991, Respondent was temporarily assigned to the regional office pending her clearance to return to the worksite by the Office of Professional Standards. A conference on the record scheduled for May 21, 1991, did not occur because Respondent broke her foot in an accident outside the regional office on May 20, 1991. Following Respondent's recuperation from her foot injury, the conference on the record that had been scheduled for May 21 was rescheduled for September 21, 1991. Because of a scheduling conflict, the conference for the record was not held until September 23, 1991. The following attended the conference for the record on September 23, 1991: Respondent, Yvonne Perez (a representative of the teacher's union), Ms. Raiford, Dr. Annunziata, and Robert Thomas (the director of the regional office). It was decided that Respondent should undergo medical evaluation to include psychiatric and psychological testing. Respondent was assigned to an alternative work location pending her fitness evaluation. Respondent was examined by Dr. Stephen Kahn, M.D., on October 15, 1991. It was decided that further testing was appropriate and Respondent was referred to Ronald L. Bergman, Ph.D., a clinical and consulting psychologist. Dr. Bergman examined Respondent on November 21 and 22, 1991. Dr. Bergman's report was forwarded to the Office of Professional Standards. Dr. Waldo Ellison, a psychiatrist, began treating Respondent on November 10, 1991, and was still treating her on a regular basis as of April 28, 1993, the date he gave his deposition in this proceeding. Dr. Ellison testified as to the Respondent's psychiatric history, her diagnosis, and her treatment plan. The record failed to establish that Respondent's mental or physical health prevented her from complying with Petitioner's rules and explicit instructions pertaining to taking leave of absence. A report was received from Dr. Bergman and the recommendations that Respondent be transferred was considered. On December 13, 1991, Dr. Annunziata wrote Respondent a memorandum on the subject of her return to teaching. This memorandum provided, in pertinent part, as follows: . . . Please be advised that your alternative assignment is hereby terminated as of December 20, 1991. Region IV has determined that you will return to Little River Elementary School on January 6, 1992, as no other site is available for your transfer. The recommendations stipulated in the report [from Dr. Bergman] are herein made conditions of your employment as follows: Involvement with the recommended program of therapy is to be monitored by district's referral agency. Acceptable attendance at the worksite must be maintained. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined future absences are imminent, leave must be requested and procedures for Board approved leave implemented. Your compliance with the aforementioned directives will be monitored by the Office of Professional Standards as the directives are considered conditions of employment with Dade County Public Schools. Respondent returned to the school site from her temporary assignment following the conference for the record in January 1992. Ms. Raiford had the occasion to issue a written reprimand to Respondent on February 11, 1992, about an incident that is not at issue in this proceeding. Pertinent to this proceeding, the memorandum advised Respondent as follows: "Further incidents of defiance or refusal to comply with a school directive will result in the initiation of disciplinary actions for the record for insubordination." Respondent worked at Little River until March 6, 1992, when she went on unauthorized leave that lasted the balance of the school year. Respondent was absent during the time Ms. Raiford wanted to schedule the observation that is part of the evaluation process. Consequently, Ms. Raiford noted that she was unable to complete the formal evaluation, but recommended that Respondent not be re-employed. On May 19, 1992, Ms. Raiford wrote Respondent the following memorandum on the subject of unauthorized absences from the worksite: Please be advised that to date you have been absent from the worksite since March 6, 1992 for 46 consecutive days. You have not contacted this administrator since April 19, 1992 nor sought Board approved leave. The UTD Contract states: "An employee shall be deemed to be absent-without-leave whenever he/she is absent and has not given prior notice to the appropriate administrator that accrued sick or personal leave is to be used or other leave has been appropriately applied for and approved. Any member of the unit who is willfully absent from duty without leave shall forfeit compensation for the time of such absence and be subject to dismissal." The employment stipulations given to you from the Office of Professional Standards have not been met in regards to acceptable attendance, notification of absence, providing lesson plans, and processing leave. Based on your neglect of duty, failure to adhere to UTD/DCPS contractual obligations, and violation of employment stipulations, I am submitting a recommendation for termination of your employment. In September 1992, the Office of Professional Standards received reports from Dr. Ellison that Respondent was medically released to return to work. Dr. Ellison believed that teaching at Little River exacerbated Respondent's condition, and he made the request on behalf of Respondent that she be transferred to another school. Dr. Ellison thought she could teach in a more orderly, structured school setting where there is better rapport and less stress. Dr. Ellison wanted Respondent assigned to a site other than Little River, but there was no evidence that Respondent could not teach at Little River because of her medical or mental condition. Because of Hurricane Andrew, Petitioner found it difficult to accommodate Respondent's request that she be assigned to another school site, and Respondent was reassigned to teach at Little River. Dr. Annunziata requested that the principal make sure that Respondent's classroom was cleaned and that the air conditioner filter was changed. Respondent returned to Little River in October 1992. She taught approximately one week and then went on unauthorized leave. She did not leave lesson plans when she left, and she did not obtain approved leave. Respondent did not return to Little River. On November 20, 1992, Dr. Annunziata instructed Respondent to schedule a conference for the record. Respondent did not comply with this directive. On November 30, 1992, Ida D. Whipple, Executive Director of the Office of Professional Standards, advised Respondent that the School Board would take steps to terminate her employment due to her unauthorized leave. On February 17, 1993, the School Board voted to suspend Respondent's employment and to initiate the instant proceedings to terminate her employment. Petitioner established that it had repeatedly instructed Respondent of the necessity to comply with leave procedures and that Respondent repeatedly failed to comply with those procedures. Although Respondent may have had legitimate reasons for being absent from school, she did not establish any reasonable grounds for her repeated failure to obtain authorized leave prior to taking these extended absences. Because Respondent did not obtain approved leave, Petitioner's policies prevented the principal from placing a permanent substitute teacher in Respondent's class. As a result, a series of substitute teachers taught Respondent's class. Petitioner also established that Respondent consistently failed to leave lesson plans during her absences. As a consequence of Respondent's repeated absences, the Petitioner's inability to staff her class with a permanent substitute teacher, and her failure to provide lesson plans, there was no continuity of education in her classroom to the detriment of the students. Petitioner established that Respondent's effectiveness as a teacher had been impaired. Petitioner established it returned Respondent to the classroom after she had been given medical clearance to return to work. Respondent thereafter went on unauthorized leave, which triggered Petitioner's decision to terminate her employment. Respondent's contention that the School Board's action on February 17, 1993, was in retaliation for worker compensation claims that Respondent had filed against the School Board is rejected as being unsubstantiated by the record. Respondent failed to fulfill the terms and conditions of her continuing contract, specifically section 3, which provides, in pertinent part as follows: 3. The teacher agrees to teach the full period of service for which this contract is made, in no event to be absent from duty without leave . . . Respondent repeatedly and intentionally refused to obey the School Board Rules and the explicit instructions that had been given to her to request approval for leave and to provide lesson plans. The instructions were reasonable in nature and given by and with proper authority.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which sustains the suspension of Respondent's employment without pay on February 17, 1993, and which terminates her continuing contract. DONE AND ORDERED this 24th day of August, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1993.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges and, if so, whether such conduct constitutes just cause to dismiss her from her teaching position, as further alleged in the Notice of Specific Charges.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Background Information The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida (including, among others, Arch Creek Elementary School (Arch Creek)), and for otherwise providing public instruction to school-aged children in the county. At all times material to the instant case, Dr. Marie Bazile was the principal of Arch Creek. Respondent has been employed as a teacher by the School Board since 2005. She presently holds a professional services contract with the School Board. Respondent taught at Arch Creek for parts of the 2008- 2009, 2009-2010, and 2010-2011 school years, initially as a third grade teacher (during the first couple of weeks of the 2008-2009 school year) and then as a kindergarten teacher. As an instructional employee of the School Board, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD (UTD Contract). Article XXI of the UTD Contract addresses the subject of "[e]mployee [r]ights and [d]ue [p]rocess." Section 1.A.1. of Article XXI provides that "the [School] Board and [UTD] recognize the principle of progressive discipline," that they "agree that disciplinary action may be consistent with the concept of progressive discipline when the [School] Board deems it appropriate," and that "the degree of discipline shall be reasonably related to the seriousness of the offense." Section 1.B.1.a. of Article XXI provides that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Section 1.B.2. of Article XXI provides, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida Statutes, including the Administrative Procedures Act (APA) " Parental Complaints During the 2009-2010 school year, several parents complained to Principal Bazile about Respondent's allowing the students in her kindergarten class to "run[] in the street" at dismissal time.3 As a result of receiving these complaints, Principal Bazile "wrote [Respondent] up" and went over with Respondent the dismissal procedures that all classroom teachers at Arch Creek were expected to follow.4 FAIR Training Also during the 2009-2010 school year, when asked to participate in mandatory FAIR (Florida Assessments for Instruction in Reading) training given by Arch Creek's reading coach, Respondent initially did not acquiesce, but, rather, indicated she first wanted to contact UTD to find out if she could be made to take this training notwithstanding that she would not be receiving any "master plan points" for her time and effort. After her inquiry was answered in the affirmative by the UTD representative with whom she spoke, she willingly underwent the training. Bathroom Incident On November 18, 2010, shortly before the school day was to begin, one of Respondent's fellow kindergarten teachers at Arch Creek, Nancy Kurre, called in sick. There was insufficient time to locate a substitute teacher to cover Ms. Kurre's class, so the students in her class were reassigned to other kindergarten classes for the day. Marie Beaubien, Arch Creek's kindergarten/first grade "chair," made the reassignments. Among the reassigned students was F., a boy with behavioral issues who had difficulty remaining in his seat and would constantly wander off, frequently to the bathroom, without Ms. Kurre's permission. F. was reassigned to Respondent's class, much to the displeasure of Respondent, who felt that she was ill-prepared to accommodate F., whom she knew to be a "difficult child," in her classroom. F. was escorted to Respondent's classroom by Socra Antenor, the school secretary. From the outset, F. was a disruptive influence in the classroom. At around 8:30 a.m., Ms. Beaubien went to the school office to look for F. after having been told by another kindergarten teacher that F. was not in Respondent's classroom, where he was supposed to be. In fact, although Respondent had decided to remove F. from her classroom and to take him to the office because she did not "want to deal with [him]" and his disruptive behavior, she had not yet done so as a result of her having been preoccupied with other matters, which diverted her attention away from F. Ms. Antenor was in the office when Ms. Beaubien came by. She told Ms. Beaubien that F. was not there and that he should still be in Respondent's classroom. Ms. Beaubien then went to Respondent's classroom. Ms. Antenor followed closely behind her. When Ms. Beaubien got to Respondent's classroom, she asked Respondent if F. was there. Although F. was not where Respondent had last seen him, nor anywhere else in the instructional space of the classroom, Respondent was confident that he had not exited the classroom. She assumed, given what she knew of F.'s behavioral history in school, that F. had wandered into the classroom's bathroom when her attention was directed elsewhere. It turned out her assumption was correct. When she and Ms. Beaubien went to the bathroom and the door was opened, F. was inside. As F. walked out of the bathroom, Ms. Beaubien took him by the hand and brought him to the school office. Ms. Beaubien erroneously thought that she had heard Respondent admit to having "locked" F. in the bathroom. In fact, not only had Respondent not made such a statement, there was no way she could have locked F. in the bathroom inasmuch as the bathroom door could not be locked from the outside. Nonetheless, Ms. Beaubien reported to Principal Bazile that the statement had been made. The School Board's Civil Investigative Unit (CIU) was thereafter notified and a CIU personnel investigation was begun (Bathroom Incident Investigation). A CIU investigative report, containing the following findings, was subsequently prepared, and it received final approval on December 15, 2010: Based on the information obtained from all parties, Ms. Kiara Higgs is in violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, and there is PROBABLE CAUSE. Based on the information obtained from all parties, Ms. Kiara Higgs is in violation of School Board Rule 6Gx13-4A-1.213, Code of Ethics, and there is PROBABLE CAUSE. Outdoor Lunch Detention Incident December 8, 2010, was an unseasonably cold day in the Miami-Dade County area, but that did not deter at least three of Arch Creek's teachers--Respondent, Edouard St. Hilaire, and Paul Fabre--from eating their lunch, at around 10:15 a.m. that day, at tables (with benches) in the outdoor patio area just outside the school cafeteria. Mr. Hilaire, who was wearing a jacket, and Mr. Fabre, who was wearing a blazer, were together at the same table, while Respondent, who was wearing a sweater and pants, was seated several tables away.5 With Respondent was a student of hers who was serving a lunch detention she had meted out. The student had on layers of clothing, including a sweat suit top (worn as an outer garment) that (at least to Mr. Fabre, from his vantage point6) looked like a blouse,7 under which were shirts of some kind.8 Both Mr. Hilaire and Mr. Fabre believed that it was too cold for the student to be eating outdoors, and they so advised Respondent and suggested to her that she send the student inside, back into the cafeteria. To allay her colleagues' concerns, Respondent followed their suggestion, notwithstanding her belief (which has not been shown to be unreasonable) that their concerns were unfounded and that the student was indeed dressed warmly enough to be outside.9 Mr. St. Hilaire reported the incident to Principal Bazile because he thought that Respondent had done something that was "not proper." The CIU was thereafter notified and a CIU personnel investigation was begun (Lunch Detention Incident Investigation). A CIU investigative report, containing the following findings, was subsequently prepared, and it received final approval on January 12, 2011: Based on the information obtained from all parties, Ms. Kiara Higgs is in violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, and there is PROBABLE CAUSE. Based on the information obtained from all parties, Ms. Kiara Higgs is in violation of School Board Rule 6Gx13-4A-1.213, Code of Ethics, and there is PROBABLE CAUSE. False 911 Call Paul Greenfield is a Region Administrative Director with the School Board. On the Friday before the start of the 2010-2011 school year winter recess, Mr. Greenfield met with Respondent at the School Board's regional office in Hialeah to formally notify her of the Lunch Detention Incident Investigation and to have her sign paperwork that would enable her to get paid during the winter recess. Respondent was in a foul mood at the time of the meeting. She was already upset that, despite her sincere protestations of innocence, the Bathroom Incident Investigation had resulted in findings of probable cause. Being informed by Mr. Greenfield that she was the subject of another CIU personnel investigation did nothing to improve Respondent's mood. Rather, it made her even more upset and prompted her to tell Mr. Greenfield that she did not feel well and wanted to leave. Mr. Greenfield responded by requesting that Respondent stay so that she could fill out paperwork that would "facilitate [her] getting paid." Respondent, in a very agitated tone of voice, expressed her unwillingness to comply with Mr. Greenfield's request. Mr. Greenfield then said to her, "Ms. Higgs, if you would just wait a few more minutes, but it's certainly up to you. I'm not going to hold you." Respondent's reaction was to call 911 on her cell phone and falsely report that she was being held against her will by her employer at the Hialeah regional office, knowing full well that this was not true and that, as Mr. Greenfield had made clear to her, she was free to leave if she so chose. Indeed, immediately after placing the call, Respondent did walk away from Mr. Greenfield. She did not go very far, however. After turning the corner in the hallway, she wound up on the hallway floor. Fire rescue personnel were summoned to the scene. They examined Respondent. Finding that Respondent did not need any further medical attention, they cleared her to leave. Respondent then left the building.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Miami-Dade County School Board issue a final order finding that there is "just cause" to suspend or dismiss Respondent on, and only on, the charge, made in Counts II and III of the Notice of Specific Charges, that in December 2010, she violated School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213 by making a 911 call falsely claiming that she was being held against her will at the at School Board's regional office in Hialeah, and, based on such finding, suspending her, without pay, until the end of the regular 2011- 2012 school year. DONE AND ENTERED this 18th day of November, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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, 2011.
The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
The Issue Whether the Respondent committed the violations alleged in the Petition dated May 29, 2009, and, if so, the penalty that should be imposed.
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 School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. (2008).1 Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Dunaway has been a teacher with the School Board since 1988. At the times pertinent to this proceeding, she was employed under a professional service contract as a third-grade teacher at Elbridge Gale Elementary School. As a classroom teacher in Palm Beach County, Ms. Dunaway's employment is subject to the collective bargaining agreement between the School Board and the local teacher's union. Disciplinary action was taken against Ms. Dunaway prior to the events giving rise to this proceeding. On April 18, 2007, the School Board issued a Written Reprimand for Violation of School Board Policy 3.96, Drug- and Alcohol-Free Workplace, after a drug test administered by the School Board in 2007 showed a positive result for cocaine. In the written reprimand, Ms. Dunaway was advised that, if she failed to comply with School Board Policy 3.96, a recommendation for termination of her employment with the School Board would be issued. Pursuant to the collective bargaining agreement, the written reprimand was placed in Ms. Dunaway's personnel file. Ms. Dunaway began using cocaine in 2003 as a result of her feelings of devastation, humiliation, and embarrassment after an ex-boyfriend sent nude pictures of her, via electronic mail, to every employee of the school at which she was a teacher. After she tested positive for cocaine in the early part of 2007, Ms. Dunaway requested and received assistance through the School Board's Employee Assistance Program, and she stopped using cocaine as a result of her successful completion in November 2007 of an intensive program at the Gratitude House Ms. Dunaway was transferred to Elbridge Gale Elementary School in August 2008. Ms. Dunaway had a strained relationship with the school principal, Gail Pasterczyk. Ms. Dunaway felt that she was subjected to frequent, intense scrutiny by Ms. Pasterczyk, and this caused Ms. Dunaway to feel uncomfortable and increasingly anxious. According to Ms. Dunaway, Ms. Pasterczyk conducted a formal evaluation of Ms. Dunaway's teaching performance on Thursday of the second week in February 2009, which was February 12, 2009. Ms. Pasterczyk was very critical of Ms. Dunaway and gave her a poor evaluation. Ms. Dunaway was very upset about the poor evaluation and, on Friday, February 13, 2009, she used cocaine for the first time since November 2007. Ms. Dunaway admitted that she took "lots of [cocaine]” but stated that she had "stopped on Friday."2 Ms. Dunaway returned to school the following Tuesday, February 17, 2009, because Monday was a holiday. According to Ms. Dunaway, she had a very bad toothache during the weekend and arranged a dentist appointment for Tuesday afternoon. She was very nervous and took Xanax, which had been prescribed for her in February, to ease her anxiety. Ms. Dunaway claimed to have taken a Xanax right before lunch on Tuesday and to have become so "inebriated" from the Xanax that she doesn't remember anything that happened after she noticed that she was slurring her speech. On Thursday, February 19, 2009, while Ms. Pasterczyk was eating lunch in the teachers' dining room, several third- grade teachers approached her and expressed their concern about Ms. Dunaway's behavior during the morning and at lunch. Ms. Pasterczyk went to Ms. Dunaway's classroom and observed Ms. Dunaway standing at the front of the classroom, slurring her words, saying inappropriate things in front of the class, and using an overhead projector, unaware that the paper she had on the projector was upside down until she was alerted to this by her third-grade students. Ms. Pasterczyk returned to her office and consulted with Britoni Garson in the School Board's employee relation’s office. Ms. Garcon sent Ms. Pasterczyk a Drug and Alcohol Documentation of Observable Behaviors form by facsimile transmittal, which Ms. Pasterczyk completed and sent back to Ms. Garson by facsimile transmittal. On the form, Ms. Pasterczyk noted that she had observed sudden changes in Ms. Dunaway's behavior, emotional behavior, nervousness, slurred speech, increased and/or loud talking, and hand tremors. Ms. Garson reviewed the documentation submitted by Ms. Pasterczyk and determined that there was reasonable cause to subject Ms. Dunaway to a drug test. Ms. Garson contacted Ms. Pasterczyk and told her that she was to go to Ms. Dunaway's classroom and accompany Ms. Dunaway to her office, where they would wait for the drug-test team to arrive. Ms. Pasterczyk did as Ms. Garson directed, and the drug test was administered to Ms. Dunaway at approximately 2:30 p.m. on Thursday, February 19, 2009. The results were submitted to the School Board on February 25, 2009, and were positive for cocaine and for benzodiazepines, the family of drugs within which Xanax falls. Cocaine is a mood-altering drug that raises a person's tempo and makes them more animated. Xanax is a type of tranquilizer that is prescribed for people who are nervous or who cannot sleep, and it has a calming effect. Cocaine stays in the body for two to three days, but, by the fourth day after use, the results of a drug test would be negative for cocaine, that is, the amount if cocaine would be less than 300 nanograms per milliliter. Ms. Dunaway met with Alfredo Taulh to discuss her test results, and Mr. Taulh advised her that she could challenge the results of the drug test within seven days; she did not do so. The School Board conducted an investigation and, after going through all of the pre-disciplinary steps required by the collective bargaining agreement, the Superintendent of the Palm Beach County school system issued a Notice of Suspension and Recommendation for Termination from Employment dated April 24, 2009, advising Ms. Dunaway that he intended to recommend to the School Board her suspension without pay and termination of employment at the May 6, 2009, School Board meeting. Article II, Section M of the collective bargaining agreement governs the discipline of employees. Article II, Section M of the collective bargaining agreement provides in pertinent part: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. . . . * * * Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph # 7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, and employee may be reprimanded verbally, reprimanded in writing, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation . . . Summary Written Reprimand - A written reprimand may be issued to an employee when appropriate in keeping with this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay . . . Dismissal - An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with the provisions of this Section, including just cause and applicable laws. Based upon a consideration of all of the evidence presented, the proof is sufficient to establish with the requisite degree of certainty that, under the circumstance of this case, the School Board's decision to terminate Ms. Dunaway conforms to the progressive discipline provisions in Article II, Section M 7., of the collective bargaining agreement. Ms. Dunaway's action in ingesting large quantities of cocaine that remained in her system when she reported for work demonstrates a flagrant disregard of the School Board's policy of ensuring a drug-free workplace, a policy with which Ms. Dunaway was familiar as a result of the written reprimand she received in 2007 for her first violation of the policy. Ms. Dunaway's testimony that she did not ingest cocaine after Friday, February 13, 2009, is rejected as not credible. The drug test was administered on Thursday, February 19, 2009, and, given that cocaine is entirely dissipated from the human body within four days, Ms. Dunaway would have tested negative for cocaine if she had not ingested any of the drug since the previous Friday, six days, prior to the drug test. In order to test positive for cocaine on Thursday, Ms. Dunaway must have ingested cocaine on Monday, a school holiday, and she could have ingested cocaine at any time between Monday and Thursday. Ms. Dunaway attributed the positive test result for benzodiazepine to the Xanax she had taken to calm her anxiety about a dental appointment she had in the afternoon of Tuesday, February 17, 2009. According to Ms. Dunaway, she took the Xanax before lunch and, after realizing that her speech was slurred, remembered nothing more about the afternoon. Ms. Dunaway may have had a dental appointment on Tuesday afternoon, and she may have taken Xanax at school, but it is clear from the context of her testimony that Ms. Dunaway was referring to a lapse in memory that occurred on the day on which the drug test was administered, that is, on Thursday, February 19, 2009. The inconsistencies in Ms. Dunaway's version of the events surrounding her ingestion of cocaine and Xanax undermine the credibility of her testimony as a whole and make it difficult to credit her claim that she was not under the influence of cocaine on the day of her drug test. Even if her version of events is credited, the fact remains that she tested positive for cocaine and for benzodiazepine on Thursday, February 19, 2009. Regardless of whether her condition on that day was the result of the cocaine in her system or of the Xanax in her system or of the combination of drugs, it is reasonable to infer that her presence in a third-grade classroom when she was so impaired that she had no recollection of being there constituted a real and present danger to the students in her class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order sustaining the suspension of Debra Dunaway without pay and terminating her employment. DONE AND ENTERED this 29th day of January, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 29th day of January, 2010.
The Issue Whether Petitioner, Lake County School Board (“the School Board”), has just cause to terminate Respondent, Cara Sanderlin, for the reasons specified in the agency action letter, dated November 13, 2018.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding, the following Findings of Fact are made: The School Board is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat.1/ The School Board is also authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. The School Board utilizes a progressive disciplinary system. It is a five-step process that begins with an undocumented counseling session and can progress to termination. However, if an offense is sufficiently severe, then the School Board can bypass lesser disciplinary measures and proceed directly to termination. Pine Ridge Elementary is within the Lake County School District. Cara Sanderlin has a bachelor’s degree in special education and approximately 16 years of teaching experience during which she has taught students with conditions such as intellectual disabilities, emotional/mental handicaps, and autism. Ms. Sanderlin has taught autistic students at Pine Ridge Elementary since 2015. She did so in a “self-contained classroom” in which the students stayed with her the entire school day. Ms. Sanderlin kept a small, plastic spray bottle2/ in her classroom. The bottle is slightly less than eight inches tall and capable of holding approximately six ounces of water. The spray bottle has a trigger mechanism that enables one to project a stream of water approximately 10 feet. At the outer limit of the spray bottle’s range, the stream loses continuity. The spray bottle’s nozzle can be adjusted so that one can project mist rather than a stream. Ms. Sanderlin used the spray bottle to mist her students when they were on the playground during warm months. That was necessary because there were no water fountains on the playground or her classroom. During the fall of 2018, Ms. Sanderlin had two to four students in her class. D.H. was one of those students. During the time period relevant to the instant case, D.H. was an 11-year-old fifth-grader and had attended Pine Ridge Elementary since second grade. D.H. is nonverbal but is able to understand what is said to him. He indicates that he wants something by pulling someone to the object’s vicinity so that it can be retrieved for him. While D.H. is able to use sign language to communicate the words “more” and “please,” it can be difficult to discern what he wants. For example, D.H. cannot communicate if someone is doing something to him that he does not like. D.H. is unable to use a bathroom on his own. When accompanied by a teacher, he insists on activating the water faucet and flushing the toilet immediately upon entering the bathroom. He also likes to splash water in the bathroom. However, D.H. does not like to wash his hands, and the teacher accompanying him to the bathroom must utilize a hand-over-hand technique in order to get his hands clean. Thus, D.H. and the person accompanying him tend to get wet. In order to prevent a therapy session from being interrupted, D.H. would be taken to the bathroom just before another teacher would visit the classroom to administer speech therapy. Therefore, it is possible that a visiting teacher could arrive in the classroom and find D.H. wet. Erin Shropshire, a teaching assistant, usually worked with D.H. on a one-on-one basis until the new teaching assistant, McKenzie Shaw,3/ started on September 28, 2018. In the fall of 2018, Abdias Rodriguez was a full-time teaching assistant in Ms. Sanderlin’s classroom. She observed Ms. Sanderlin spray water in D.H.’s general direction without intending to get him wet. This action was used when Ms. Sanderlin needed to get D.H.’s attention and other measures, such as calling his name or tapping her desk, were unsuccessful. While this was not an uncommon occurrence, it did not happen every day.4/ Ms. Shaw sometimes used the spray bottle in a similar manner in order to stop D.H. from doing something in the classroom that he was not supposed to be doing. Danelle Crinion began working at Pine Ridge Elementary as the school’s speech and language teacher in the fall of 2018. She and her teaching assistant, Carol Phelps, go from class to class in order to provide instruction. While in Ms. Sanderlin’s class in the fall of 2018, Ms. Crinion and Ms. Phelps saw Ms. Sanderlin and/or Ms. Shaw, on three or four occasions, use the spray bottle to redirect D.H. after a verbal cue was ineffective in prompting D.H. to move from one part of the classroom to another.5/ On one occasion, they saw that D.H.’s shirt was wet. Ms. Crinion did not question Ms. Sanderlin about those instances but did report them to Laine Obando, the principal of Pine Ridge Elementary, on October 19, 2018. Ms. Crinion’s report indicated that Ms. Sanderlin and Ms. Shaw would direct a stream of water directly at D.H.’s person rather than alongside him. After talking to Ms. Sanderlin, Ms. Rodriguez, and Ms. Phelps, Ms. Obando contacted David Meyer, the School Board’s Supervisor of Employee Relations, and Mr. Meyer initiated an investigation, which ultimately led to the Superintendent’s recommendation that Ms. Sanderlin be terminated from her teaching position. Ms. Obando is familiar with the methods used to redirect autistic students and testified that spraying a child with water is an inappropriate means of redirection. Ms. Sanderlin concurred with Ms. Obando’s testimony.6/ Ms. Sanderlin has no prior violations of the rules governing teacher conduct in Florida. As for why the School Board is seeking to terminate Ms. Sanderlin rather than utilizing its progressive disciplinary system, Mr. Meyer testified that Ms. Sanderlin’s alleged conduct is sufficiently egregious to justify termination because D.H. is nonverbal and unable to express his feelings. Ultimate Findings Ms. Rodriguez was the most persuasive witness at the final hearing, and her testimony has been credited as the most accurate description of how Ms. Sanderlin used a spray bottle in her classroom.7/ The preponderance of the evidence does not demonstrate that Ms. Sanderlin intended for the streams of water to make direct contact with D.H.’s person. The preponderance of the evidence demonstrates that Ms. Sanderlin directed streams of water to the side of D.H. in order to get him to comply with verbal directions. While this practice should not be condoned as an acceptable means of redirecting a student, it is insufficient to support a finding that Ms. Sanderlin committed “misconduct in office” in violation of rule 6A-5.056(2) or “incompetency” in violation of rule 6A-5.056(3). Nor does such behavior amount to a violation of rule 6A-10.081(1)(b), (1)(c), and (2)(a). Therefore, while Ms. Sanderlin should receive some manner of discipline, the School Board lacks justification for bypassing lesser disciplinary measures within its progressive disciplinary system and proceeding directly to termination. There is no just cause for terminating Ms. Sanderlin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board issue a Final Order rescinding Ms. Sanderlin’s termination and imposing a lesser disciplinary measure within its progressive disciplinary system. DONE AND ENTERED this 22nd day of March, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 22nd day of March, 2019.
The Issue The Respondent seeks to cancel and/or rescind the continuing contract of the Petitioner based on the fact that she refused to report to work as requested. The issue to be resolved is whether the Respondent may refuse to grant an instructor who is the holder of a continuing contract a consecutive fifth year of personal leave and secondly whether or not the Respondent may properly dismiss its instructional employee who has requested and has been denied such leave and thereafter refuses to report to work as directed.
Findings Of Fact The testimony of Wilbur S. Franklin, Principal, and Armando Henriquez, Superintendent, District School Board of Monroe County and other documentary evidence reveals that the Petitioner was granted personal leave for four consecutive school years beginning with the 1971-72 school year. The Petitioner also requested personal leave for a fifth year (school year 1975-76) and the principal of the school to which she was last assigned and who was responsible for approving such requests denied it. Messr. Franklin, Principal, testified that his reason for denying the Petitioner a fifth year of personal leave was based on the fact that he needed to make permanent staffing recommendations and the situation in which the Petitioner presented posed a problem in that from year to year he did not know whether or not she would return to school or whether she would again request an additional year of personal leave. He testified that in making his staff recommendations, he sought the best instructors in order to have a sound overall educational program and in order to fulfill that goal, he sought to utilize the services of the most qualified instructors available. The Petitioner testified that during the four years of annual leave which she was granted, she obtained a masters degree in guidance and counseling and that she thought that her training and educational background was more attuned to that type position and that was the position in which she was seeking with the Respondent. She testified that she was certified and was holder of a continuing contract as a classroom teacher and that her employment with the Respondent was in the areas of elementary education, i.e., fourth grade and below. She further testified that she made application for part-time and full- time positions in the areas of guidance and counseling and while vacancies have occurred during those times in which she had an application pending, she was bypassed and she voiced her opinion that based on her education and tenure, she has been discriminated against. In this regard the undersigned asked her to point to specific instances which would substantiate her position and she was unable to do so during the course of the hearing. She testified that vacancies occurred and were filled but she did not know what the educational background of the person(s) who was selected to fill these positions. The Petitioner has been an instructor within the county for more than fifteen years and she, as earlier stated, is the holder of a continuing contract. During March, 1975, she requested by letter a fifth year of annual leave and the Respondent, through its Principal, Messr. Franklin, advised that a fifth year of annual leave would not be granted to her. The Petitioner appealed this denial up to the level of superintendent and he sustained the Principal's recommendation. Messrs. Arthur, Assistant Superintendent Monroe County School District, Armando Henriquez and Wilbur Franklin, Principal, all testified that when the school year 1975-76 began, the Petitioner did not report for duty and has not reported during the current school year. They all testified that while they had no direct conversations with the Petitioner, they have corresponded through written communiques. The Petitioner was given 10 days following the conclusion of the hearing to submit any supporting memoranda which would tend to substantiate her claim that her denial of a position in guidance and counseling was done for ulterior and other unlawful reasons. Respondent's counsel asked the undersigned to take official notice of Section 231.43,44, Florida Statutes, regarding absence without leave and school board rules and regulations 1.4.13 dealing with absence without leave and 1.4.14, personal leave without pay as to the discretion vested in the Respondent with regard to setting school policies. The Petitioner in accordance with her request for ten days leave to file a written statement and/or other documentary evidence supportive of her position, has submitted such and it has been duly considered. Section 231.43, F.S., states, in pertinent part, that the school board shall adopt regulations prescribing conditions under which the instructional staff shall be granted personal leave which when granted shall be approved by the superintendent. In keeping with this dictate, the Respondent promulgated certain guides for the granting of leave (See Board's Exhibit No. 9 received in evidence and made a part hereof). Section 231.44, F.S., dealing with "Absence without leave" states pertinently that any instructor who is willfully absent from duty without leave shall forfeit compensation...and his contract shall be subject to cancellation...(Emphasis added). It is true that the Petitioner has requested positions in areas which she was certified and the evidence indicates that, at least on one occasion, a vacancy existed and was filled by another applicant. However absent any evidence that the successful applicant was selected based on an arbitrary or capricious method or that the Petitioner was not selected due to some discriminatory or other unlawful means, it must be inferred that the Respondent employment selection process was fair. Nor was any evidence submitted which tends to show that the Respondent's attempt to dismiss the Petitioner was initiated for any reason other than the stated reason advanced by Messr. Franklin to the effect that he was desirous of establishing a stable and efficient complement of instructors. It is only logical that an administrator would seek to achieve this. Based on the above and the entire record, it is recommended that the Respondent be permitted to terminate the employment of the Petitioner, Betty Suarez Patterson for failing to report for work and continuing to do so at her assigned position at Truman Elementary School, Key West, Florida. DONE and ORDERED this 28th day of January, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1976. COPIES FURNISHED: Hilary U. Alberry, Esquire 310 Fleming Street Post Office Drawer 1430 Key West, Florida 33040 Betty Suarez Patterson 3712 Donald Avenue Key West, Florida 33040
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.
