The Issue Issues for consideration in this case include whether there exists an adequate factual basis for Petitioner Duval County School Board (the Board) to terminate Respondent's employment as a principal and teacher for those violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida, 1941, as amended (the Act), which are alleged by the Board's Notice of Dismissal; and whether there exists an adequate factual basis for the Education Practices Commission (EPC) to revoke or suspend Respondent's teaching certificate or otherwise discipline Respondent for violations set forth in the Amended Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator's Certificate number 263958, covering the areas of physical education and school principal (all levels). The certificate is valid through June 30, 2001. Respondent is a certified teacher who, on the basis of his long-term employment by the Board, has tenure as a result of the length of his service in a satisfactory capacity. Respondent was employed as the Principal at Sandalwood High School by the Board from 1988 through the spring semester of 1994. Commencing in the summer of 1994 and continuing through October 20, 1995, Respondent was employed by the Board as Principal at Forrest High School. Respondent has been removed from his position as Principal of Forrest High School, but continues as a salaried employee of the Board pending resolution of the charges which form the basis for this proceeding. During Respondent's tenure as Principal at Forrest High School, he supervised teachers Julie T. Lee, Kimberly L. Smith, Pamela W. Bean, and Karen E. Jones. Julie T. Lee, Teacher During the 1994-1995 school year, Lee was both the Student Activities Director and the Cheerleading Coach for Forrest High School. In addition, she taught two classes on the subject of ecology. As Student Activities Director, she had an office centrally located, apart from the classroom she used. In November of 1994, Respondent called Lee into his office. He shut and locked the door. He asked Lee to sit down in a chair that Lee noted had been turned and was out of place. She sat down. Respondent then went behind her and proceeded to rub her shoulders. Lee was uncomfortable and did not welcome or encourage Respondent's actions. On February 6, 1995, Respondent again called Lee into his office and shut and locked the door. After a conversation with Lee, Respondent approached Lee and said he need a hug. He proceeded to hug Lee without her consent. In May of 1995, while Lee was using the telephone in the Principal's office for a long distance call, Respondent returned unexpectedly, shut and locked the door, and sat down in a chair behind Lee. He proceeded to grab Lee about her hips and pull her down to sit in his lap. He told her if she would take care of him, she could have anything she wanted at the school. Lee got up, said she would take care of student activities and left. About a week later, Respondent encountered Lee outside her office and asked her if she had thought about his offer. Lee acted as if she didn't know what Respondent was talking about. Later, before the end of the school year, Respondent informed Lee that he was moving her office. The new location for Lee's job as Student Activities Director was a weight room near the school gym. The room was bright red, smelled of sweat, and was located in an out of the way place for purposes of student activities. Lee commenced using the new location prior to the end of the school year for a period of approximately four weeks. At the end of the four week period, Respondent came to Lee's office and told her that she had one hour in which to move. The new office was a former special education classroom at the other extreme end of the building, away from a central location, flooded with water and dirty. A few days thereafter, Respondent also told Lee that she would have to teach three out-of-field social studies classes in addition to the Cheerleading Coach and Student Activities Director jobs. Lee felt she could not do all three jobs under any circumstances. Further, she felt that teaching a majority of out- of-field classes would subject her to being surplussed the following year unless she became certified in those areas in the interim. Lee did not accept the justification that the additional class assignment was purely the result of budgetary constraints and felt that she was being subjected to retaliation for not meeting Respondent's sexual overtures. She talked with Mark Scott, a music teacher, about the matter on September 18, 1995. Scott had heard about difficulties that another teacher was having with Respondent. Scott revealed his discussion with the other teacher, Kimberly Smith, to Lee. Lee subsequently contacted Smith. Kimberly Smith, Teacher Sometime near the middle of the 1994-1995 school year, Respondent walked up behind Smith in the school library and massaged her shoulders. Smith did not welcome or invite Respondent's conduct. On or about June 14, 1995, Respondent asked Smith into his office and locked the door. After a conversation relating to her resignation as basketball coach, Respondent asked Smith for a hug. As Smith attempted to pull back from the hug, Respondent pulled Smith against his body and with his face on her neck told her that she smelled good. Respondent then told Smith to get out of there before he forgot who he was. The next school year, on September 18, 1995, Respondent approached Smith in the hallway near the library and after some conversation grabbed her arm, pulled her to him and requested that Smith come to his office and give him "some tender loving care." If she complied, Respondent promised to "see what I can do for you." Smith told Jon Nerf, an English teacher at Forrest High School, about the September 18, 1995 incident shortly after it occurred. Nerf's testimony establishes that Smith was emotionally upset by Respondent's action. Pamela W. Bean, Teacher In April of 1995, Respondent asked Pamela W. Bean, a teacher, to come into his office when she asked to talk with him. He closed the door. After she was seated and talking, Respondent told Bean that she "looked stressed." He stepped behind her and began to rub her shoulders. When Bean got up, Respondent told her that he "needed a hug." Bean, nonplussed by the unsolicited and unwelcome advance of Respondent, complied with a brief hug and left. The next day, a similar incident with Bean occurred in Respondent's office. Again, Respondent's back rub and hug overtures were unsolicited by Bean who complied again with Respondent's request for a hug. Karen Jones, Teacher In the spring of 1995, Karen E. Jones, another teacher, asked to speak with Respondent. He asked her into his office and closed the door. Respondent then told Jones "I need a hug" and proceeded to hug her. After hugging Jones, Respondent told her that "we need to do that more often." In the first half of September of 1995, Respondent asked Jones to come into a room near his office called "Trawick's Trough." After entering the room, he again asked for a hug and hugged Jones. Jones did not solicit or welcome the hug. Jones later confided prior to initiation of any formal charges against Respondent in her long-term friend, Susan Ingraham, who is a school board employee, regarding Respondent's overtures. Julie A. Gray, Teacher Julie A. Gray was a first year teacher of Spanish and the yearbook sponsor at Sandalwood High School during the 1991-1992 school year when Respondent was her supervisor and the Principal at that school. Respondent approached Gray in the hallway during the early part of that school term. Respondent told Grey that he liked to get hugs from his faculty members. Gray patted him lightly on the shoulders. Respondent then said,"oh, I didn't mean here. I meant in my office." Later in the school term, Gray went to report to Respondent that all the yearbooks had been sold. Gray found Respondent near the bookkeeper's office and started talking to him. He leaned over and tried to kiss her on the mouth. When she backed away, Respondent tried to hug Gray. She was embarrassed by the incident and informed Peggy Clark, a professional support staffer for new teachers, that Respondent had made remarks of a sexual nature to Gray. Gray's roommate was also informed by Gray regarding Respondent's attempt to kiss Gray. The Teachers As a result of Lee's conversation with Mark Scott, Lee subsequently compared experiences with Smith. Bean, assigned by Respondent to sit in the student activity office during one of Lee's social studies classes also had a discussion with Lee. The three, Lee, Smith and Bean, decided to lodge complaints with the school administration and did so in early October of 1995. Lee felt she had not choice if she did not want to lose her job. Smith would have reported Respondent's behavior toward her earlier, but felt that she was alone and could not succeed. Bean, likewise, had felt she was alone and would not be believed over the word of a principal. Jones learned about the other teachers and their grievances a couple of weeks following Respondent's last advance toward her and decided to join the others in making a complaint. Gray had considered bringing sexual harassment charges against Respondent in the spring of 1992, but felt it would simply be her word against Respondent. She decided to come forward with her allegations in response to requests by the Board's representative who had learned of Respondent's behavior in 1992 toward Gray. Based on their candor and demeanor while testifying, as well as the consistency of their testimony with earlier statements made by them to persons with whom they spoke following various incidents, the testimony of all five teachers, Lee, Smith, Bean, Jones, and Gray, is fully credited and establishes that Respondent's conduct toward them was intimidating and adversely affected their abilities and enthusiasm for teaching in such situations. Stefani Powell, Contract Manager Stefani Powell was a district supervisor for ARAMARK, the operator of the Board's food service in the school system during the 1994-95 school year. In her capacity, Powell managed 14 school cafeterias, including the one at Forrest High School. Respondent, as the Principal at Forrest, was a client of ARAMARK's, oversaw what happened in the cafeteria, and approved certain aspects of the cafeteria's functioning. In meetings with Powell in his office, Respondent began closing and later locking the doors, commencing in October of 1994. He initiated hugs with Powell at the end of these meetings. On approximately eight to 10 occasions, the last in January or February of 1995, Respondent hugged Powell. Initially, the hugs were light, but progressed and grew stronger with Respondent eventually placing his hand on Powell's back and pushing inward. On the last occasion, Respondent kissed Powell on the cheek. None of these attentions by Respondent was solicited by Powell and were unwelcome. Since Respondent's advances made Powell uncomfortable, she eventually confided in her supervisor who advised that Powell always take someone with her or ensure the presence of a third person at conferences with Respondent. Powell followed this practice with regard to future meetings with Respondent. After reading in the newspaper of the allegations of the teachers at Forrest High School, Powell told her mother, a school board employee, of her experiences with Respondent. As a result, Powell was put in touch with the Board's investigator and her complaint against Respondent followed. Due to her candor and demeanor at the final hearing, as well as consistency of her testimony with statements made by her to others, Powell's testimony is totally credited. Dishonesty In The Course Of Employment Carol Abrahams was a clerk one at Forrest High School during the 1994-1995 school year. She shared a social relationship with Respondent and his wife. In April of 1995, Respondent made Abrahams the Principal's secretary. Abrahams was a clerk one. A clerk three is the customary rating and higher paying position normally assigned duties as a Principal's secretary. Respondent sought to augment Abrahams' pay since she was paid less than a Principal's secretary would normally receive. Respondent directed the use of Community School funds to pay Abrahams for work after the normal school day hours. Commencing with the beginning of the 1995-1996 school year, Abrahams was paid $9.50 per hour for the hours of 3:30 p.m. to 6:30 p.m. each day that Community School functioned, Monday-Thursday, through September of 1995. Abrahams did not work during all the hours for which she claimed payment for the period of August 23, 1995 through September 28, 1995. Specifically, Abrahams went to an aerobics class conducted at Forrest High School from 3:30 until 4:30 p.m. almost every Monday, Wednesday and Thursday of each week during August and September, 1995. On three payroll hour certifications signed by Respondent, payment was made to Abrahams for a total of 16 hours during 16 days that were not actually worked at the times claimed. Respondent knew that Abrahams was attending the aerobics classes, but it was assumed by he and others that Abrahams would make up the missed hours. Abrahams testimony that she did school work at home, on weekends and at other times in an amount of hours sufficient to more than make up for the hours claimed on the subject pay roll certifications, while creditable, is not corroborated by any record of such "comp" time and cannot serve to extinguish the commission by Respondent of the technical violation of approval of those time sheets for subsequent payment when he knew those records were not accurate. Conduct And Effectiveness Respondent's misconduct, as established by the testimony of Lee, Smith, Bean, Gray, Jones and Powell, constitutes personal conduct reducing Respondent's effectiveness as an employee of the Board.
Recommendation Pursuant to provisions of disciplinary guidelines contained within Rule 6B-11.007, Florida Administrative Code, it is RECOMMENDED that a final order be entered by EPC revoking Respondent's teaching certificate for a period of two years, with recertification at the conclusion of that time conditioned upon Respondent's acceptance of a three year probationary period upon terms and conditions to be established by the EPC, and it isFURTHER RECOMMENDED that a final order be entered by the Board dismissing and discharging Respondent from his position of employment with the Board.DONE AND ENTERED this 13th day of December, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996. COPIES FURNISHED: Ernst D. Mueller, Esquire Office of the General Counsel City of Jacksonville 600 City Hall 220 East Bay Street Jacksonville, Florida 32202 J. David Holder, Esquire 14 South 9th Street DeFuniak Springs, Florida 32433 William J. Sheppard, Esquire Sheppard and White, P.A. 215 Washington Street Jacksonville, Florida 32202 Karen Barr Wilde, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8154
Findings Of Fact William Haynes Gandy, for 17 years a school teacher and coach, began his most recent stretch of employment with the Santa Rosa County School Board in the fall of 1978 at Jay High School. He coached football and taught girls' physical education and math courses during the 1978-1979 school year, even though he held a teacher's certificate in physical education only, at all pertinent times. Coaching assignments entail a certain amount of prestige and entitle their recipients to a salary supplement. In Santa Rosa County, school principals make coaching assignments in their unfettered discretion. LETTER NO FACTOR On July 1, 1979, Mary Cecelia Diamond Findley, assistant principal of Jay High School during the preceding school year, became principal. During Dr. Findley's first year as principal, Mr. Gandy taught math and science courses. In the fall of the year, a student asked petitioner to write a letter on her behalf, because she had been accused of a burglary. Dr. Findley's son had also been charged with this crime. On November 30, 1979, Mr. Gandy addressed the following letter "To Whom it May Concern" and gave it to the student's parents: I, W. H. Gandy, being employed by Santa Rosa County School Board as an in- structor at Jay High School do hereby give the following statement in behalf of Karen Cooley. I have known this student for several years. She was in my class last year and was an excellent student. I found her to be very cooperative, initiative [sic] and enthusiastic young student. Her capabilities and talents are unlimited if she applied herself. I know of no past conflicts or involvements in our community or school which would reflect on her character. In working directly with young people for the past 15 years, I have found that most all students need help at one time or another. Of course, their needs vary, from personal, emotional problems, school discipline problems, to problems with the laws of our society and state. I feel Karen realized what she did was wrong and now must face the consequences. She has already been subjected to the scrutiny of her classmates at school, to the embarrassment of hurting her parents and family, and to the fact that she took part in crime and now has a record which will remain with her the rest of her life. Karen cannot undo the wrong she has done, but certainly since this is her First Offense, and she has the ability and desire to mature into a useful citizen in our community, she should be given this opportunity. I hope and pray that she will be given some kind of a probation period and given the opportunity to finish school and start a meaningful life of her own. Petitioner's Exhibit No. 1 He told no one other than the Cooleys and Karen's attorney about the letter, at the time. Dr. Findley did not learn of the letter until this year. Dr. Findley's decision not to reappoint Mr. Gandy as assistant football coach, more than two and a half years after the letter was written, took place after discussions with the head football coach and had nothing to do with the letter or any other exercise by petitioner of his first amendment rights. TRANSFER Beginning with the 1979-1980 school term, Mr. Gandy has been on continuing contract as a teacher for respondent. On Dr. Findley's recommendation, at the close of the 1982-1983 school year, and that of Bennett C. Russell, respondent's superintendent, respondent transferred Mr. Gandy to the Gulf Breeze Middle School. Originally he was to teach health classes there, but he was assigned physical education classes after his request for formal hearing was filed. Respondent had taught some classes out of his field every year he was at Jay High School. Before the letter on behalf of Ms. Cooley was ever written, and, according to petitioner, before there were any ill feelings between Dr. Findley and himself, he was assigned exclusively math and science courses for the 1979-1980 school year. In 1980-1981, and again the following school year, Mr. Gandy taught a single physical education class and several math classes. He taught math courses exclusively during the 1982-1983 school year. By the spring of 1983, there were five teachers at Jay High School who had taught there shorter periods than the five years petitioner had taught at Jay High School. Of these, Oliver Boone, the band director, and Deborah Walther, who was certified in art and science, were retained. Desiree Jamar, who was certified in art, was transferred; and the two other junior teachers did not have their annual contracts renewed. One of these two, Deborah Gomillion, who is certified to teach exceptional education classes, was subsequently rehired to head the exceptional education program at Jay High School. Five of the 32 teachers at Jay High School for the 1982-1983 school year were certified in physical education, but, unlike respondent, some of them were certified to teach other subjects, as well. Respondent transferred another coach from Jay High School who was certified in social studies as well as physical education. There was only one teacher certified in mathematics for the 1982-1983 school year. Respondent hired a second certified mathematics teacher for 1983-1984 who was to teach five mathematics courses and coach football at Jay High School. On July 28, 1983, respondent hired a teacher certified in physical education to teach at Pace High School. Dr. Findley and Mr. Gandy had their differences. She believed him guilty of certain improprieties never formally established. He resented a notice of non-renewal Dr. Findley, under the erroneous impression that Mr. Gandy had not yet been awarded a continuing contract, sent in response to instructions so to notify all annual contract teachers who taught compensatory classes like the math classes he was teaching at the time. The low esteem in which Dr. Findley held petitioner was a factor in her recommending that he be transferred. The superintendent was aware of the friction, but he made his decision "because we were cutting back personnel at Jay High School and we had a position available at Gulf Breeze Middle School." (T. 129) Respondent's superintendent did not accept her recommendation that petitioner be transferred just to keep the peace. Dr. Findley herself was transferred from Jay High School for the 1983-1984 school year. The continuing contract of employment between the parties does not grant petitioner the right to teach in a particular school. Joint Exhibit No. The master contract in effect between Santa Rosa County School Board and the Santa Rosa Professional Educators provides: Involuntary transfer of teachers shall be made by the Superintendent and Board based upon: l) Santa Rosa County School District needs as determined by the Superintendent and the Board; 2) certification; 3) length of service in Santa Rosa County; and, 4) any other data. Petitioner's Exhibit No. 6, p. 8. Article IV of the same agreement establishes in detail a grievance procedure, but does not make it mandatory or exclusive.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent dismiss petitioner's request for hearing, without prejudice to his filing a grievance as regards his transfer. DONE and ENTERED this 27th day of September, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983. COPIES FURNISHED: Philip J. Padovano, Esquire 1020 East Lafayette Street Tallahassee, Florida 32302 Paul R. Green, Esquire Post Office Box 605 Milton, Florida 32570
Findings Of Fact The Respondent, Mary L. Martin, has been a Gadsden County school teacher with a continuing contract of employment since August 18, 1967. For almost all of her teaching career, the Respondent has been a full-time elementary school teacher. During a number of her years teaching, the Respondent also taught some evening adult education courses, but she has not done so since the 1983/1984 school year. Numbered paragraph 4 of the Respondent's Continuing Contract of Employment with the School Board provides in pertinent part: The County Board may, upon recommendation of the County Superintendent, transfer and assign the Teacher to a similar position in any other school of the county, provided that the duties shall be similar to the duties originally assigned and the salary shall be in accordance with the salary schedule. Gadsden County School Board Rule 4.113, provides in pertinent part: TRANSFERS.--The assignment of an employee shall be the responsibility of the Board upon recommendations of the Superintendent. Employees who desire a change in assignment involving a transfer to another school or position shall file a written statement of such desire . . .. * * * (2) In order to meet the staffing needs of the district, it is occasionally necessary to transfer an employee involuntarily. Such transfer shall be effective after consultation with and notice to the employee involved. Article VII, Section C., of the Collective Bargaining between the School Board and the Gadsden County Classroom Teachers Association in effect from 1992 through 1995, governing Transfer and Reassignment, provides in pertinent part: The Board and the GCCTA recognize that the transfer of employees shall be the responsibility of the Board upon recommendation of the Superintendent. Any teacher who desires a change in grade and/or subject assignment in the following year or who desires to transfer to another school in the following year shall file . . . a written request to that effect . . .. * * * In making transfers, the Board will first review requests of volunteers. . . .. During the 1991/1992 and 1992/1993 school years, the Respondent was teaching third grade at the Stewart Street Elementary School in Quincy. During those years, the Respondent suffered from a certain amount of stress, and she made her complaints of stress known to her principal, Douglas Black, as well as to some of her coworkers and, during the spring of 1992, to Harold Henderson, who was a member of the School Board at the time, but who also was running for election as School Superintendent. Henderson won the election and became the Gadsden County School Superintendent. From approximately the time that Harold Henderson became School Superintendent, Douglas Black began asking him to transfer the Respondent to another school in order to resolve certain difficulties he was having at the school that involved the Respondent. One less than satisfactory aspect of the Respondent's performance as an elementary school classroom teacher in recent years was that she frequently was tardy. Out of 196 work days in the school year, the Respondent was tardy 64 days in 1990/1991, 60 days in 1991/1992, and 105 days in 1992/1993. Since she had the key to her classroom, children in her class would have to wait in the hall for her to arrive, and other teachers would have to leave their classrooms unattended to either monitor the children in the hallway or to get a master key to let the children into the Respondent's classroom. The tardiness of course came to Black's attention, and conflicts developed between the Respondent and Black when Black tried to enforce his policies against tardiness. (These conflicts certainly also contributed to the Respondent's stress.) The Superintendent denied Black's initial requests that the Respondent be transferred, but major new problems developed during one lunch period in February, 1993, when a fellow teacher, Juanita Austin, attempted to prevent children from the Respondent's class from cutting in front of Austin's class in the lunch line. Accusations of misconduct flew between the Respondent and Austin, and at least the children from the Respondent's class became embroiled in the controversy. Unable to resolve the problem between the two teachers any other way, Black was reduced to having change the lunch schedules of the two teacher's classes. But, when he instructed Austin to take her class to lunch earlier than the Respondent's, the Respondent accused Black of favoritism. The principal thought that he was doing the best he could to deal with the problems the two teachers were having and felt that the Respondent was being obstinate and difficult in opposing his proposed solution to the problem. As a result of the lunchroom dispute and its aftermath, all three became embroiled in ongoing disputes and arguments that were disruptive and that detracted from their performance of their assigned work. In addition, the Respondent began to accuse Black of other misconduct, including the alleged use of vulgar language. 1/ The situation was brought to the attention of the Superintendent and his staff. By the end of the 1992/1993 school year, Superintendent Henderson decided that it would be best for all concerned if he transferred the Respondent out of Stewart Street Elementary. He approached Black and confirmed that Black still was interested in having the Respondent transferred. He had Black put the request in writing. Black put his request for the transfer in writing on June 3, 1993. The next day, Superintendent Henderson formally granted the request in writing and initiated the mechanics of a lateral transfer at the same salary as for her previous position as elementary school teacher. The first step the Superintendent's staff had to take to implement the transfer was to locate a position to which to transfer the Respondent. The staff was able to identify an opening in its Adult Education Program for a teacher to provide education services at the adult mental health services center operated by Apalachee Community Human Services at a facility near the Gadsden Memorial Hospital. There was no evidence of any other teachers volunteering to transfer to this position, and no special certifications were required for the position so that the Respondent's certifications for the position fully qualified her for the job. (As noted, she had taught in the School Board's adult education program in the past.) When the opening was brought to the Superintendent's attention, he approved it. The new position would entail only two or three hours of actual classroom teaching a day, and class size would average only approximately 15 students per class, instead of approximately 30 elementary school children in each of the Respondent's elementary school classes. The Superintendent felt those differences between the two positions would help reduce the Respondent's job stress. In addition, in the new position, the Respondent would work much more independently than as an elementary school teacher. No School Board supervisors or administrators are housed at the adult mental health services center, and the Respondent would not be monitored very closely. Since, during the course of a normal work day, the Respondent would encounter no School Board personnel other than possible the two part-time teachers, the Superintendent felt that the new position would help minimize the personality conflicts the Respondent was encountering at Stewart Street Elementary. Finally, if the Respondent is tardy for class in the new position, it would not cause the same kinds of discipline and administrative problems as it did at Stewart Street Elementary. The School Board would not even monitor the Respondent for attendance and timeliness at the adult mental health services center, which the Superintendent felt also would serve to reduce the Respondent's job stress. The preliminary steps having been taken, the Superintendent made the transfer official by including it in a July 20, 1993, list of recommended transfers to be presented to the School Board for consideration at its July 27, 1993, meeting. Meanwhile, the Assistant Superintendent, Corbin Scott, telephoned the Respondent and informed her the next day that the transfer had been recommended. The Respondent objected to the transfer. The transfer was considered at the July 27, 1993, meeting of the School Board. The Respondent appeared at the meeting and spoke in opposition to the transfer. Over the Respondent's objection, the School Board voted to transfer the Respondent, as recommended by the Superintendent, effective August 9, 1993. The Respondent's salary in the new position is the same as for her previous position as elementary school teacher. At her new position, the Respondent's "students" actually are clients of the mental health services center. Most suffer from a mental or emotional condition that debilitates them in some way and makes it difficult for them to achieve academically; some also suffer from drug or alcohol dependence. Based on the evidence, there does not seem to be much semblance of continuity in the course of instruction the Respondent is able to give. There does not necessarily seem to be any educational logic or continuity to when they begin the mental health center's education program or when they discontinue it (sometimes when they destabilize mentally and have to be institutionalized.) When students are "enrolled," neither the Respondent nor the Gadsden County School Board seems to have any control over whether the "students" attend the classes offered to them; control over is left to the mental health services center. Nor does the Respondent have any real control over her "students" while they are in class with her. While "class" is in session, the "students" are free to do as they choose. They can pay attention or ignore the Respondent, sit down or stand up, and come or go as they choose. The Respondent is instructed not to attempt to discipline the "students" for not attending to and participating in class, or to attempt to require them to attend to or participate in class, primarily because there is the risk that the Respondent's actions could cause them to destabilize while they are in class with the Respondent. The Respondent's new position as a teacher at the adult mental health services center certainly is not identical to her former position as an elementary school teacher. In some ways, the positions are similar, but there also are significant differences between the two positions. Whether the two positions are "similar" for purposes of this case is a mixed question of both fact and law. There was no direct testimony or evidence on the question whether the Respondent's new position as a teacher at the adult mental health services center has the same "professional prestige" as the position of elementary school teacher. The answer to the question has to be inferred from evidence as to the nature of the two positions. It is found that, as compared to the elementary school teaching position the Respondent had, the adult education teaching position to which the Respondent was transferred does not have "similar professional prestige."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Gadsden County enter a final order: (1) either reinstating the Respondent, Mary L. Martin, to her former position as elementary school teacher at Stewart Street Elementary School or transferring her to a similar position at the same salary; but (2) denying her claim for the award of attorney fees and costs. RECOMMENDED this 28th day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of June, 1994.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Among these schools are Homestead Senior High School, South Dade Senior High School, and Dr. William A. Chapman Elementary School. The School Board provides 180 days of instruction for students during the regular school year. Respondent has been employed as a teacher by the School Board since 1983.1 She has a continuing contract of employment with School Board. From 1983 through the end of the 1992-93 school year, Respondent was assigned to Homestead Senior High School (Homestead). Respondent was reassigned to South Dade Senior High School (South Dade) for the 1993-94 school year. She remained at South Dade until 1997. At both Homestead and South Dade, Respondent taught mathematics. Donald Hoecherl was the principal of South Dade from 1994 until 1999. During his first year at South Dade, Mr. Hoecherl had "problems and concerns [regarding Respondent's] numerous absences from work and the fact that those absences seriously impacted the delivery of the education product" to Respondent's students. He reviewed Respondent's South Dade attendance records and discovered that there was a "pattern of absences": 102 absences during the 1993-94 school year and 74.5 absences during the 1994-95 school year, as of May 19, 1995. Mr. Hoecherl then prepared the following memorandum, and gave it to Respondent (on May 19, 1995), after discussing its contents with her: MEMORANDUM May 19, 1995 TO: Henrietta Dolega, Teacher FROM: Donald A. Hoecherl, Principal South Dade Senior High School SUBJECT: ABSENCE FROM WORK SITE DIRECTION Please be advised that you have been absent from the worksite during the 1994-95 school year for a total of 74.5 days. Additionally, during the 1993-94 school year you were absent from the worksite for a total of 102 days. The absences were listed as follows: sick-9, personal-1, contagious disease-7, leave without pay-24, hardship- 32, sick leave bank-18, and emergency leave- 11. Your absences from duty adversely impact the educational environment by: failing to provide support services for students, impeding the academic progress of your students, failure in providing a continuity of instruction and effective operation of this school. As a result of your continued absences from work you are advised of the following procedures concerning any future absences: Intent to be absent must be communicated directly to Mr. Hoecherl or Mr. Dawson and then to the appropriate secretary to secure a substitute in accordance with procedures delineated in the faculty handbook. Emergency lesson plans for twenty days on file with your department chairperson. Maintain the emergency lesson plans at 20 days upon return from absences. Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Hoecherl or Mr. Dawson upon your return to work along with a 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. These directives are in effect upon the receipt of this notice and are necessary to prevent adverse impact to students and their academic progress, and to insure a continuity of the educational program. Additionally, these procedures are meant to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities. The directives contained in the memorandum were reasonable in nature and within Mr. Hoecherl's authority to give Respondent. Mr. Hoecherl required Respondent to have "[e]mergency lesson plans for twenty days on file with her department chairperson" because "there would often be that many [consecutive] da[ys] [that Respondent would be] out." On May 22, 1995, Mr. Hoecherl held a Conference-for- the-Record with Respondent to discuss Respondent's "excessive absences from work." Mr. Hoecherl subsequently prepared (on June 2, 1995) and furnished to Respondent (on June 7, 1995) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A conference for the record was held on May 22, 1995, in the office of the principal. The conference was attended by: Katrina Chinni, Union Steward, Henrietta Dolega, Teacher, Carol Brown, Assistant Principal and Donald A. Hoecherl, Principal. The conference as indicated in the notification dated May 19, 1995, addresse[d] your excessive absences from work. Please find attached the memorandum titled "Absence From [Work] Site Direction." The procedures outlined in that directive were reviewed during the conference. You are reminded that these procedures must be adhered to. Mrs. Chinni indicated that you felt two areas outlined in the absence from work site direction procedures were unreasonable and bordered on violating your contractual rights. The items were the requirement to have 20 days of emergency lesson plans on file with your department chairperson and direction to notify two people of your absences. After further review the established guidelines will remain as written in the "Absence From Work Site Direction." That memorandum, therefore is now a formal part of this summary of the conference for the record. Additionally, you were provided information regarding areas of assistance available to you through the Dade County Public School System. I am confident that the concerns identified can be corrected. You are reminded that you are entitled to attach a written response to be included as part of this process. In an effort to help Respondent improve her attendance, Mr. Hoecherl referred Respondent to the School Board's Employee Assistance Program on May 25, 1995. Respondent's attendance, however, did not improve. Furthermore, "she didn't always" follow the directives set forth in Mr. Hoecherl's May 19, 1995, memorandum. There were occasions when she did not have a 20-day supply of lesson plans on file with her department chairperson; neither did she consistently notify Mr. Hoecherl or Mr. Dawson of her intent to be absent. Accordingly, on December 19, 1995, Mr. Hoecherl held another Conference-for-the-Record with Respondent. Mr. Hoecherl subsequently prepared (on January 16, 1996) and furnished to Respondent (on February 28, 1996) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A conference for the record was held on December 19, 1995 at 9:05 A.M. in the office of the principal. The conference was attended by Katrina Chinni, Union Steward, Henrietta Dolega, Teacher, and Donald A. Hoecherl, Principal. The conference as indicated in the notification of the conference for the record dated January 15, 1995, addressed your continual absence from work. It was noted during this conference for the record that as of December 19, 1995 you have acquired twelve absences from work. It was noted that your absence disrupts the educational process for our students. Additionally, it was noted that as of December 19, 1995 you were out of all accrued sick leave. Also, you were reminded that on several occasions you failed to follow the prescription provided on May 19, 1995 in the Absence From Work Site Directi[on]. You were reminded that you must notify the Principal or the Principal's Designee in addition to Ms. Dafcik. Additionally, you were reminded that failure to comply with the guidelines outlined in the conference for the record and the Absence Form Work Site Directi[on] would result in additional administrative action. Please feel free to contact me if I may be of any help in providing any assistance in an effort to mediate this ongoing problem. You are reminded that you are entitled to attach a written response to be included as a part of this process. I am confident that the concerns identified in this conference can be corrected Ms. Chinni, on behalf of Respondent, submitted the following written response to Mr. Hoecherl's January 16, 1996, memorandum and requested that it be considered an "addendum" to the memorandum: In the summary of conference for the record for Henrietta Dolega held Tuesday, December 19, 1995, the following items were omitted: The conference was also attended by Ted Hennis, Assistant Principal. The union stated that Ms. Dolega had documentation for all of her absences and that she was actively trying to address her health problems. The union stated that Ms. Dolega had shown a pattern of intent to comply with the directive to inform Mr. Hoecherl when she was going to be absent. Respondent was absent a total a 46 days during the 1995-96 school year. From the beginning of the 1996-97 school year through October 24, 1996, Respondent had ten days of absences. Respondent also arrived late to work and failed to provide "emergency lesson plans" in accordance with Mr. Hoecherl's May 19, 1995, memorandum. Accordingly, on October 24, 1996, Mr. Hoecherl held another Conference-for-the-Record with Respondent to address these ongoing problems. Mr. Hoecherl subsequently prepared (on October 25, 1996) and furnished to Respondent (on October 28, 1996) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A Conference-for-the Record was held on Thursday, October 24, 1996 at 8:54 a.m. Present at the conference were Ted Hennis, Assistant Principal; Henrietta Dolega, Teacher; Donald A. Hoecherl, Principal; and Katrina Chinni, UTD Representative. This conference was held in compliance with the UTD Contract Article XXI and addressed: Absences from work. Lateness to work. Failure to provide emergency lesson plans as outlined in the work site directive. Absences from Work A review of your attendance indicated that in addition to your absences addressed during the Conference-for-the-Record held on January 16, 1996, you missed an additional twenty-seven (27) days for a total of 46 days during the 1995-1996 school year. As of this date, you have been absent a total of ten (10) days for the 1996-1997 school year. Additionally, you are currently out of accrued or personal leave. Furthermore, it has been noted that on several occasions you have been late to work. Your absences from duty and lateness to work adversely impact[] the educational environment by: failing to provide support services for students, impeding [t]he academic progress of your students, failure in providing a continuity of instruction and effective operation of this school Your failure to maintain the emergency lesson plan file is in direct disregard for the procedures established prior to and re- established during the Conference-for-the Record held January 16, 1996. In an effort to be clear, as this is a new school year, you are reminded that, as a result of your continued absences from work you are advised that you must continue to adhere to the following procedures concerning any further absences: Intent to be absent must be communicated directly to Mr. Hoecherl or Mr. Hennis and then to the appropriate secretary to secure a substitute in accordance with procedures delineated in the Faculty Handbook. Emergency lesson plans for twenty (20) days on file with your Department Chairperson and Mr. Hennis. Emergency lesson plans must be reviewed by Mr. Hennis prior to being placed in your emergency lesson plan file. Maintain the emergency lesson plans at a twenty (20) day level upon return from absences. Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Hoecherl or Mr. Hennis upon your return to work along with a medical release to return to full duty. Any absence not documented as indicated above and outside of your six (6) personal days will be listed as unauthorized leave without pay. If it is determined that future absences are imminent, leave must be requested and procedures for Board Approved leave implemented. In regard to [the] Gail L. Grossman, Attorney at Law, request to reschedule the Conference-for-the-Record as she was unavailable to attend and provide representation[,] [y]ou were reminded that Article XXIV of the UTD Contract states "An employee ma[]y not be represented by a minority/rival union or by an attorney in a Conference-for-the-Record. This administrator asked if you had any comments and you replied that in regard to the lesson plans provided during one of your absences that the Department Chairperson misunderstood your references to the mixed review, thus not providing an adequate lesson for the day. The directives established are in effect as of this conference and are necessary to prevent adverse impact to students and their academic progress and to [e]nsure a continuity of the educational program. Additionally, these procedures are necessary to maintain an effective worksite operation. Also be assured that assistance will continue to be provided upon your request. In conclusion, failure to comply with these directives will result in additional disciplinary action. You are apprised of your right to append, to clarify or to expand any information recorded in the conference by this summary. Mr. Hoecherl again referred Respondent to the School Board's Employee Assistance Program on October 24, 1996, in a continuing effort to help her improve her attendance. Respondent's attendance, however, continued to be a problem. By February 24, 1997, Respondent had accumulated 40 days of absences for the school year (nine days of sick leave, two days of personal leave, 25 days of authorized leave without pay, and four days of unauthorized leave without pay). By memorandum, dated February 25, 1997, to Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, Mr. Hoecherl requested a "determination of fitness" for Respondent. The memorandum read as follows: I am by way of this memorandum requesting the assistance of the Office of Professional Standards regarding Ms. Henrietta Dolega (employee # 143398). Ms. Dolega has a history of excessive absenteeism from the 1993-1994 school year to present. Ms. Dolega's attendance pattern has seriously impacted the students in her charge. At the present time, she is assigned to teach Algebra II for five class periods. Based on the information provided, I am requesting that a Determination of Fitness be conducted prior to Mrs. Dolega's return to South Dade High School. Please contact me at 247-4244 if you require any additional information. Appended to the memorandum was a "leave history that Mr. Hoecherl provided to Dr. O'Donnell" indicating the number and types of Respondent's absences from the 1993-1994 school year up to February 24, 1997. As of March 10, 1997, Respondent had been absent 28 consecutive days. On March 7, 1997, Respondent had requested, in writing, "a leave of absence without pay effective 2/24/97 through 3/10/97 (TENTATIVE)." On March 10, 1997, Mr. Hoecherl sent the following memorandum to the School Board's Leave Office requesting that Respondent's leave request be denied: I am requesting that the Leave Without Pay Request from Henrietta Dolega, employee #143398 be denied. As you can see from her request, Ms. Dolega is requesting leave from February 20 through March 10, 1997. Ms. Dolega has been absent from work a total of fifty (50) days this school year. Her latest absences began January 27, 1997, and as of March 10, 1997, continues for 28 consecutive days. This current request for Leave Without Pay comes to us after the fact. As a result, a permanent substitute could not be secured. Ms. Dolega continues to notify us on a weekly basis of her attendance status. Additionally, a review of Ms. Dolega's attendance history indicates that this is not a first time occurrence. . . . On March 14, 1997, Dr. O'Donnell held a Conference- for-the-Record with Respondent, at which it was agreed that Respondent would be placed on medical leave (without pay) until April 30, 1997. Dr. O'Donnell subsequently prepared (on March 19, 1997) and then mailed to Respondent a memorandum in which she summarized what had transpired at the conference. The memorandum read as follows: On March 14, 1997, a meeting was held with you in the Office of Professional Standards. In attendance were: Mr. Don Hoecherl, Principal, South Dade Senior; Ms. Julia Menendez, Director, Region VI; Ms. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade (UTD); and this administrator. This meeting was held to clarify your status in reference to returning to work and your future employment with Dade County Public Schools. Your attendance pattern over the past four years was reviewed as follows: 1993-94 102 total days absent 1994-95 75.5 total days absent 1995-96 46 total days absent 1996-97 55 total days absent as of 3-14-97 Despite the fact that you have provided documentation from your physician, your pattern of absences has caused serious problems with the delivery of an appropriate curriculum and the continuity of the educational program. You have been absent the past 35 consecutive days and you were notifying the school on a daily or weekly basis. Therefore, Mr. Hoecherl was not able to hire a full-time certified teacher to replace you. At this point, the following options were reviewed with you: be in attendance every day resign you position from Dade County Public Schools retire, if eligible request leave. Your pattern of absences and leaves is disruptive and must stop. A long term solution is vital. You agreed to request leave through April 30, 1997. By April 23, 1997, you will provide official written clearance by your physician or you will extend your leave through the end of the 1996-97 school year. Should you return this school year, Mr. Hoecherl will expect you to be in attendance every day. If you are absent, the school will take action. Also, you will be required to clear through the Office of Professional Standards prior to your return either in May or August 1997. You were reminded to follow the directive previously given you regarding absences. You must speak with Mr. Hoecherl or Mr. Hennis during work hours. Do not leave messages on answering machines or with anyone else. Further, you were directed to provide original notice from your physician rather than a fax. It is the desire of DCPS that you can resolve your health issues and return to work. However, if you cannot, a more permanent resolution must be reached. You agreed to provide to me the original leave form with an attached doctor's notice by March 24, 1997. Respondent, who suffered from adhesions, thereafter requested, and was granted, a series of extensions of her medical leave (without pay). After being on medical leave for three years, Respondent became depressed and started seeing a psychiatrist, Stephen Kahn, M.D. By letter dated March 30, 2001, Dr. Kahn "released [Respondent] to resume her position as full-time teacher without restriction." On April 25, 2001, Dr. O'Donnell held a Conference- for-the-Record with Respondent to discuss Respondent's return to the classroom. Dr. O'Donnell subsequently prepared (on April 26, 2001) and furnished to Respondent (on May 5, 2001) a memorandum in which she summarized what had transpired at the conference. The memorandum read as follows: On April 25, 2001, a conference-for-the- record was held with you in the Office of Professional Standards (OPS). In attendance were: Ms. Clemencia D. Waddell, Region Director, Region VI; Dr. Randy Biro, Bargaining Agent Representative, United Teachers of Dade (UTD); and this administrator. Service History As you reported in this conference, you were initially employed by Miami-Dade County Public Schools as a teacher in October 1983, and you were assigned to Homestead High School through June 1993. You were assigned to South Dade Senior High School from August 1993 through January 1997. You have been on Board approved leave since January 1997 through the present. You indicated that your teacher certificate is valid through June 30, 2004, in Elementary Education, Mathematics, and that you hold a Continuing Contract (CC) with the District. Conference Data Reviewed A review of your personnel file in the Office of Professional Standards reveals an extensive documentation of attendance and performance problems since 1984. On March 14, 1997 a conference-for-the-record was held in the Office of Professional Standards. On that date, your attendance pattern was reviewed from the prior four years and is as follows: Years Days Absent 1993-1994 102 days 1994-1995 78.5 days 1995-1996 46 days 1996-1997 55 days (prior to March 14th) At the March 14, 1997, conference-for-the- record held in the OPS, you were told that despite the extensive documentation provided from a variety of treating physicians, your absences are deemed to be excessive. You were advised that if you could not be in regular attendance to request a Board- approved leave of absence; which you did. A review of your leave history is as follows: Leave From Through Type October 8, 1992 December 16, 1992 Illness October 25, 1994 December 16, 1994 Illness February 2, 1994 May 31, 1994 Illness February 18, 1997 February 15, 2001 Personal As of this date, you have exhausted all leave options available to you through Miami-Dade County Public Schools and no further requests for any type of leave would be honored. You were asked if you understood this condition and you indicated that you did. You were told that your treating physician, Dr. Stephen Kahn, forwarded a statement which read, "Ms. Dolega is released to resume her position as full-time teacher without restriction." However, he did not respond to several requests from OPS to review the job descriptions for both elementary and secondary teacher. Dr. Randy Biro stated that you feel you can perform all of the responsibilities of a teacher. Ms. Clemencia Waddell informed the participants that you are assigned to William A. Chapman Elementary School with teaching duties within your area of certification. You were told that, from information provided by the payroll department, you would be granted four sick days upon your return. You were also told that taking into consideration your previous history with poor attendance that you would be referred to OPS if you were absent; you said that you understood. Action Taken You were reminded of the availability of services from the District's support referral agency. You were provided the option to resign your position with Miami- Dade County Public Schools. The following directives are herein delineated which were issued to you during the conference concerning future absences. Be in regular attendance and on time. Intent to be absent must be communicated directly to Ms. Paulette Martin, Principal, William A. Chapman Elementary. Site procedures for provision of lesson plans and material for the substitute teacher when absent must be adhered to in the event of any absence from the site. Should future absences exceed the number of days accrued, the absences will be considered LWOU and employment action will ensue. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to students and their academic progress, the operation of the work unit, and to insure continuity of the educational program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of disciplinary measures. During the conference, you were provided with a copy of School Board Rule 6Gx13-4A- 4E-1.01, Absences and Leave. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely affects this level of professionalism. Ms. Martin, Principal, was apprised as to your return to the worksite on April 30, 2001, to assume classroom duties. Action To Be Taken You were advised that the information prescribed in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region VI and the Principal of William A. Chapman Elementary School. Any noncompliance with the prescriptive directives issued would result in the recission of site disciplinary action and compel district disciplinary measures to include dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have such response appended to your record. The directives given to Respondent at the April 25, 2001, Conference-for-the-Record (and "delineated" in Dr. O'Donnell's summary of the conference) were reasonable in nature and given with proper authority. The "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent" at Dr. William A. Chapman Elementary School (Chapman Elementary) required each teacher to have a folder containing lesson plans for a five-day period for use by a substitute in the event of the teacher's absence. Respondent returned to the classroom after more than a four-year absence on April 30, 2001. She was assigned to Chapman Elementary to teach a third grade class with 13 or 14 students. Paulette Martin is now, and has been since the 2000-01 school year, the principal of Chapman Elementary. In early May of 2001, shortly after Respondent's return to the classroom, her younger brother passed away. Too upset to come to work, Respondent took off from work the following day. Her absence was covered by accrued leave and authorized. Respondent took off from work one other day during the 2000-01 school year following her return to work. Feeling "bad[ly]" about her brother's death and her failure to have attended his funeral (in Maryland), Respondent had trouble sleeping at night. It "got to a point" where Respondent believed that, for the sake of her health, she needed to take a day off from work. That day was June 7, 2001. This second absence following her return to the classroom was also covered by accrued leave and authorized. Respondent was not assigned to teach summer school following the 2000-01 school year. Respondent returned to Chapman Elementary for the 2001-02 school year. In September and October of that year she was absent a total 12 days (September 4, 14, 27, and 28, and October 1, 2, 3, 4, 5, 10, 22, and 23). Six of these days of absences (September 4, 14, 27, and 28 and October 1 and 22) were covered by accrued leave and authorized. The remaining days of absences were not covered by accrued leave and they were unauthorized. These absences "had a negative impact on [the students in Respondent's] class." On October 30, 2001, Ms. Martin prepared the following memorandum, which she subsequently gave to Respondent: SUBJECT: NOTICE OF EXCESSIVE ABSENCES September 4 Sick September 14 Sick September 27 Sick September 28 Sick October 1 Sick It has been determined that you have been excessively absent during the 2001-2002 school year. To date, you have been absent on the following days: October 2 LWOPU[2] October 3 LWOPU October 4 LWOPU October 5 LWOPU October 10 LWOPU October 22 Sick October 23 LWOPU Your absences total twelve (12) days, exceeding the number of days you have accrued. As stated in the Summary of the Conference-for-the-Record of April 25, 2001, you were advised of past absences and directed as follows: Be in regular attendance and on time. Intent to be absent must be communicated directly to the principal. Site procedures for provision of lesson plans and materials for substitute teachers when absent must be adhered to in the event of absence. Should future absences exceed the number of days accrued, absences will be considered Leave Without Pay (Unauthorized) and employment action will ensue. You were also advised that noncompliance with these directives would necessitate a review by the Office of Professional Standards for imposition of disciplinary measures. Please be advised that this memorandum is being submitted to the Office of Professional Standards and the Region Director for Personnel for review and subsequent action. Ms. Martin brought to Dr. O'Donnell's attention that "once again [Respondent] was experiencing attendance problems and had been excessively absent." Accordingly, on November 16, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent. Dr. O'Donnell subsequently prepared (on that same date) and furnished to Respondent a memorandum in which she summarized what had transpired at the conference. The memorandum read, in pertinent part, as follows: Conference Data Reviewed A review of the record included reference to the following issues: Attendance-to-date Leave/attendance history Previously issued attendance directives. You returned to the work site on April 30, 2001. You were absent two days before the end of the school year which ended on June 15, 2001. Your attendance for the current school year is as follows: Sick/Personal 6 Temporary Duty 1 Leave Without Pay 6 (Unauthorized) 13** **through October 23, 2001 15 days absence since your return from leave on April 30, 2001 You were asked if you wished to respond to this continuing pattern and you said that in reference to your absences last May, your brother passed away. You stated that you have had all of your teeth pulled and replaced and that is why you have been absent this school year. You were reminded of the directives regarding attendance that you have been previously issued. You were told that your dental problem should have been addressed during the summer or winter break or any time that would not interfere with the educational program of the students. You were then reminded of a meeting held with you in the Office of Professional Standards on March 14, 1997, which was held to review your absences and ability to return to work. The following options were reviewed with you at the meeting: Be in attendance every day Resign your position from Miami-Dade County Public Schools Retire, if eligible Request leave You effected a leave retroactive to January 1997 after the March 1997 meeting. You were reminded of your previous record of absences and leaves as reviewed at the conference- for-the-record held in the Office of Professional Standards on April 25, 2001 which was as follows: Years Days Absent 1993-1994 102 days 1994-1995 78.5 days 1995-1996 46 days 1996-1997 55 days** **through January 1997 when you effected leave. Leave From Through Type October 8, 1992 December 16, 1992 Illness October 25, 1994 December 16, 1994 Illness February 2, 1994 May 31, 1994 Illness February 18, 1997 February 15, 2001 Personal You were reminded that previously your absences had been deemed to be excessive. You were also reminded that you have exhausted all leave options and no further requests for any type of leave would be honored. You were asked if you wished to respond to this information and you declined comment. At the April 25, 2001 conference-for-the- record, which was held in OPS, your treating physician forwarded a statement which read in full, "Ms. Dolega is released to resume her position as full-time teacher without restriction." At that meeting, Dr. Randy Biro, your Member Advocate, stated that you are able to perform all teaching responsibilities. You were also reissued attendance directives. You have failed to comply with the directives which were issued to you by virtue of your six unauthorized absences during the current school year. Your actions are considered to be gross insubordination. You were asked if you had any statement to make regarding your continued pattern of excessive absences and you did not. Action Taken You were told that due to your history of excessive absences, you had been referred to OPS. On two previous occasions, as well as today's conference, you were issued the following directives: Be in regular attendance and on time. Intent to be absent must be communicated directly to Ms. Paulette Martin, Principal, William A. Chapman Elementary. Site procedures for provision of lesson plans and materials for the substitute teacher when absent must be adhered to in the event of any absence from the site. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay Unauthorized (LWOU) and employment action will ensue. Pending further review of this case and formal notification of the recommended action of disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact to the operation of the work unit and to the services provided to students, as well as to insure continuity of the program. Noncompliance with these directives will necessitate further review by the Office of Professional Standards for the imposition of (additional and immediate) disciplinary action. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely affects this level of professionalism. Ms. Martin was apprised as to your return to the worksite. You were advised to keep the information presented in this conference confidential and not discus this with students or staff. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Superintendent of Region VI, Assistant Superintendent in the Office of Professional Standards, and the Principal of William A. Chapman Elementary School. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include any of the following: a letter of reprimand, Domain VII (PACES Professional Responsibilities Component) Professional Improvement Plan (PIP) which could impact the annual evaluation decision, suspension, or dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have such response appended to your record. Respondent was not absent in November of 2001. Her next absence was on December 10, 2001. This absence was covered by accrued leave and authorized. A determination was made that Respondent "be recommended for dismissal for the following charges: gross insubordination, willful neglect of duty and incompetency." On December 12, 2001, Dr. O'Donnell held a Conference- for-the-Record with Respondent to discuss this recommendation. Respondent was given the option to resign or retire "in lieu of dismissal." Speaking through her union representative, Respondent declined the offer, claiming that her "absences were due to illness." On the days that she was absent following her return to the classroom on April 30, 2001, Respondent did not report to work because she believed that she was too ill to do so. Although she was well aware of the directive that she had been given to "[b]e in regular attendance," she felt that, because of her condition on these days, she was not able to come to work and properly discharge her classroom teaching responsibilities. At the beginning of the school year, Respondent cut her leg on her dishwasher and the wound did not heal properly. She consulted her physician, who prescribed two antibiotics for her. The antibiotics "knocked [her] for a loop" and she missed work as a result. Respondent also missed a day of work because she had a bout of diarrhea. On September 27 and 28, 2001, and October 1, 2, 3, 4, and 5, 2001, Respondent was recovering from oral surgery (the extraction of all of her remaining teeth) that was performed on her after school on Wednesday, September 26, 2001. She was absent on these days because she was "taking pain pills and [she] was really in pain." The surgery that resulted in her absences on September 27 and 28, 2001, and October 1, 2, 3, 4, and 5, 2001, was done to enable Respondent to receive full upper and lower dentures. Respondent had a long-standing need for such dentures. The dentures were necessary, as her dentist, Dr. Hans Sperling, testified (by deposition), because: [Respondent] ha[d] extensive decay in her mouth present to the point that the teeth were not restorable. She also had severe periodontal disease, extensive bone loss around the teeth, which will not render the teeth appropriate to use as [an] abutment to retain either a partial denture or fixed bridges. Dr. Sperling first noticed "extensive decay in [Respondent's] mouth" during her initial visit to his office on October 9, 1999. At that time, Dr. Sperling told Respondent that "she needed the extractions" and that they should be "done by an oral surgeon" because of the "extensive amount of teeth that need[ed] to be taken out." He further advised her "that she would need a complete exam before anything else was done." Respondent did not see Dr. Sperling again until April 6, 2001, when Dr. Sperling gave her a "complete exam," which revealed that she still had "severe decay in her teeth." Dr. Sperling also found that she had "severe periodontal disease." Respondent next saw Dr. Sperling on June 26, 2001. On that date, Dr. Sperling "took impressions of her lower and upper jaws," the first step in the process to provide her with dentures. Respondent was next scheduled to see Dr. Sperling on July 19, 2001, but she "broke[] this appointment." Respondent next saw Dr. Sperling on August 9, 2001. During this visit, Dr. Sperling "registered her bite so [he could] articulate the models on an articulator." Respondent's next visit to Dr. Sperling was on September 5, 2001, when she "tried . . . the [dentures] that she was going to be having." Her last pre-surgery visit to Dr. Sperling was on September 25, 2001, when she picked up the dentures that the oral surgeon was going to place in her mouth. Dr. Sperling advised Respondent that it would take approximately four days for her to recover from the oral surgery and suggested that she schedule the surgery for a Thursday so she would be able to return to work on the following Monday. Respondent scheduled the oral surgery for Wednesday, September 26, 2001. Respondent believed that, by having the surgery on this date, she would miss only two days of work and only one day with her students inasmuch as Friday, September 28, 2001, was a teacher planning day and she anticipated that she would be able to return to the classroom the following Monday, October 1, 2001. Respondent had enough accrued leave to cover this anticipated two-day absence. Respondent's recovery, however, took longer than anticipated and she was absent the entire workweek (Monday, October 1, 2001, through Friday, October 5, 2001) following the surgery. Dr. Sperling conducted a "post-operative evaluation" of Respondent on October 1, 2001. He observed that "the healing was within normal limits," although Respondent did complain to him that she was still experiencing pain. Respondent did not have the surgery done during the preceding summer, when she was not working, because she could not afford it at that time. The dentures that were placed in her mouth "are temporary[.] [E]ventually [she will] have implants." While Respondent's absences following her return to the classroom on April 30, 2001, were not contumacious acts, she did willfully disregard the directives given her that her "[i]ntent to be absent must be communicated directly" to Ms. Martin and that "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent must be adhered to in the event of any absence from the site."3 Respondent repeatedly failed to follow these directives despite having the apparent ability to do so (just as she had ignored similar directives when she was teaching at South Dade under Mr. Hoecherl's supervision). Respondent did not communicate her intent to be absent to Ms. Martin prior to any of her absences. Furthermore, Respondent did not maintain a folder containing lesson plans for substitute teachers to use in her absence. Respondent was verbally advised that she was not in compliance with the "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent." Nonetheless, to the detriment of the students in her class, she continued to wait until after the instructional day had begun (anywhere from 45 minutes to an hour and beyond) to provide (by facsimile transmission) lesson plans for the substitute teacher (rather than maintaining a folder with a five-day supply of lesson plans). At its January 16, 2002, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [her] from all employment by the Miami-Dade County Public School, effective the close of the workday, January 16, 2002, for gross insubordination; incompetency; and willful neglect of duty."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a continuing contract teacher with the School Board for her "gross insubordination" and "willful neglect of duty," as more specifically described above. DONE AND ENTERED this 7th day of June, 2002, in Tallahassee, Leon County, Florida. 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 7th day of June, 2002.
The Issue Whether or not the Petitioner, Joseph E. Sedlak, is entitled to the restoration of any rights and privileges previously enjoyed, which have been removed as the result of the Respondent, University of North Florida's, notice of non-renewal of the Petitioner's contract beyond June 15, 1977, and whether or not the Petitioner is entitled to renewal of his contract with the Respondent beyond June 15, 1977.
Findings Of Fact This cause came on for consideration based upon the com-plaint filed by the Petitioner, Joseph E. Sedlak, dated July 9, 1976, as amended March 29, 1977. The answer to the amended complaint was filed by the Respondent, University of North Florida, April 15, 1977. The Complainant/Petitioner is a duly appointed employee and faculty member of the University of North Florida, who initial employment commenced on December 16, 1974. On June 2, 1976, Dr. Robert M. Siudzinskl, Chairman of the Department of Special Education, College of Education, University of North Florida, conducted an annual evaluation of Use Petitioner, Dr. Joseph E. Sedlak, a member of the faculty of the Department of Special Education. During the course of the annual evaluation process, Dr. Siudzinski told Dr. Sedlak that he had made the decision to recommend that Dr. Sedlak's contract as an employee with the University of North Florida not be renewed after June of 1977. This statement was made to Dr. Sedlak following a discussion between Dr. Siudzinski and Dr. Sedlak concerning the annual performance evaluation of Dr. Sedlak, as accurately summarized in Petitioner's Exhibit #54, admitted into evidence. Dr. Siudzinski then read from the Academic Personnel Policies and Procedures of the University of North Florida, Chapter XI-25 and 26, which states: "... the recommendation not to renew a non- tenured faculty member will originate with the Chairman of the department and be concurred in by the Dean of the College and Vice President and Dean of Faculties." After this Dr. Sedlak was informed by Dr. Siudzinski that Dr. Siudzinski had conferred with the President, Vice President and Dean of Faculties, and the Dean of the College of Education at the University of North Florida and they had concurred with his decision and had authorized Siudzinski to recommend non-renewal. (The excerpts of the University of North Florida Academic Personnel Policies and Procedures, Chapter XI are found as Petitioner's Exhibit #60, admitted into evidence.) It is unclear whether Dr. Siudzinski did in fact confer with the President and gain his concurrence with the decision and authority to recommend non-renewal; however, there were some conferences between Siudzinski and Vice President and Dean of Faculties and the Dean of the College of Education. These individuals concurred with the decision and authorized Siudzinski to recommend the non-renewal of Dr. Sedlak's contract of employment with the University of North Florida. At that time the Vice President and Dean of Faculties was Dr. Roy L. Lassitor and the Dean of the College of Education was Dr. Andrew Robinson. Dr. Siudzinski, in the course of the conference with Dr. Sedlak on June 2, 1976 stated his reasons for recommending non-renewal. Those reasons were: Failure to cooperate with the Department Chairman. Failure to respond to the assistance quarter in amanner that benefited the Department. Unprofessional behavior during the assis tance quarter. Failure to contribute to the Department functioning commensurate with his rank (Reference was made to Dr. Sedlak's work on the 'Discrepancy Model.')" Finally, Dr. Siudzinski read from the University of North Florida Academic Personnel Policies and procedures, Chapter XI-26 and 27 which states: "prior to the transmission of the notice of non- reappointment, the University Officer initiating such action shall confer informally with the faculty member and explain the reasons for non-reappointment. The faculty member may request a written statement of reasons for non- reappointment within ten days after receiving the written notice. The request shall be in writing and the reasons shall be provided within ten days after the submission of the request. The notice of non-reappointment shall state in it the expiration date of the current contract and the effective date of termination and it shall indicate that the faculty member may appeal to the Committee on Rights and Responsibilities if he feels that the action is based on constitutionally impermissible grounds or to the President for review of the non-renewal decision when constitutional issues are not involved." Between June 2, 1976 and June 10, 1976, Dr. Roy Lassiter met with Dr. Sedlak and discussed, among other things, Dr. Sedlak's qualifications to remain on the faculty at the University of North Florida. Somewhere in this time period there was a discussion between Dr. Andrew Robinson and Dr. Sedlak, in which Dr. Robinson indicated that he concurred with the reasons which Dr. Siudzinski had given for the recommended non-renewal of Dr. Sedlak's contract, based upon Siudzinski's documentation and Siudzinski's reasons. On June 10, 1976, Dr. Thomas G. Carpenter, President of the University of North Florida, wrote to Dr. Sedlak recounting the conference of June 2, 1976, between Dr. Siudzinski and Dr. Sedlak, that informally notified Dr. Sedlak of the fact that his contract would not be renewed after June 15, 1976. The letter of Dr. Carpenter also indicated that formal notification of the action of non- renewal was being mailed June 10, 1976. Dr. Carpenter's letter further indicated that a new contract would be given to Dr. Sedlak effective June 16, 1976, for a contract year of 1976-77. (This letter had been prepared for Dr. Carpenter's signature by Dr. Lassiter, who is the delegated authority in matters of non-renewal of a non-tenured faculty member, in accordance with University of North Florida Academic Personnel Policies and Procedures, Chapter XI-25.) As Dr. Carpenter promised, formal notification of non-renewal of Dr. Sedlak's contract of employment was mailed from Dr. Robert M. Siudzinski, Chairman of the Department of Special Education, June 10, 1976. A copy of this letter of non-renewal is Petitioner's Exhibit #51, admitted into evidence. This letter served as official notification from the President of the University of North Florida, through his designee, Dr. Robert Siudzinski that Dr. Sedlak would not be appointed to the faculty of the Department of Special Education after June of 1977. The Siudzinski letter established that the current contract for the 1976-77 academic year would officially terminate on June 15, 1977. The letter stated that Dr. Sedlak could request a statement of reasons for the non- renewal within ten days of the date of receipt of the letter. The letter also attached the rules of the Board of Regents regarding the filing of grievances regarding non-renewal of contract. The letter went on to state that any grievance which Dr. Sedlak wished to file must be filed with the University President within 20 days after receipt of the letter, in accordance with quoted provisions. These provisions are drawn from the Chapter 6C-5.08(4)(c)5., Florida Administrative Code, which states: "any faculty member who deems himself aggrieved because of the recommendation that his contract of employment not be renewed and alleges (1) that the recommendation is based on constitutional impermissible reasons or (2) that it violates his property rights or (3) that it is not in compliance with written standards, criteria, or procedures prescribed by the Board of Regents or University regulations made within twenty days after receipt of the notice of non-renewal initiate his grievance by filing with the President, a complaint conforming to the requirements of paragraph (a) of Subsection (3) of this rule." Dr. Sedlak wrote a letter of June 14, 1976, to Dr. Siudzinski requesting a statement of reasons for non-renewal. This letter was responded to on June 22, 1976, in a letter by Dr. Siudzinski which stated four reasons for non-renewal of the contract. Those reasons being: "1. Failure to cooperate with the Department Chairman. Failure to respond to the assistance quarter in a manner that benefited the Department. Unprofessional behavior. Failure to contribute to the Department programs commensurate with rank and expectations at the time of initial appointment." Subsequent to the receipt of a statement of reasons, Dr. Sedlak filed his original letter of complaint of July 9, 1976. In accordance with Chapter 6C-5.08(4)(c)6., Florida Admin-istrative Code, Dr. Carpenter requested of Dr. Minor H. Chamblin, Acting Chairperson of the Faculty Grievance Committee of the University of North Florida, that an investigation be made of the complaint filed by Professor Sedlak in his July 9, 1976 letter. A copy of the report of that investigation may be found as Petitioner's Exhibit #59, admitted into evidence. The investigation did not lead to the resolution of the complaint of Dr. Sedlak, as indicated by the ongoing proceedings. The underlying facts involved in the dispute over the non-renewal of Dr. Sedlak's contract, began with the initial interview for employment which was conducted by Dr. Siudzinski. It was Dr. Siudzinski's contention in his testimony given in the course of the hearing, that Dr. Sedlak was told in the employment interview, that the University of North Florida program in Special Education was designed to have students obtain competencies in their field, meaning that the program at the University of North Florida was a competency based program. Moreover, Dr. Siudzinski contended that he told Dr. Sedlak that behavior modification was a strong part of the University of North Florida program and that he felt that Dr. Sedlak was weak in the behavior modification area and needed to improve. Dr. Siudzinski testified that he told Dr. Sedlak these things, notwithstanding the fact that Dr. Sedlak was hired to teach coruses other than behavior modification courses. Dr. Siudzinski indicated in his testimony that Dr. Sedlak was encouraged to sit in on Dr. Siudzinski's behavior modification course as an aid to Sedlak's achieving competency in the area. In opposition to this statement, Dr. Sedlak's testimony in the hearing indicated that he assumed his duties as a teacher at the University of North Florida, following initial interviews, but these interviews did not include a discussion of the necessity that he, Dr. Sedlak, have a competency in behavior modification. He said, as indicated by his vita filed with the University of North Florida at the time of his employment, Dr. Sedlak had never taken courses in behavior modification, and according to Dr. Sedlak those courses were not required as a prerequisite to his employment at the University of North Florida. Dr. Sedlak stated that at the initial interview there was no discussion of the philosophy of the Department of special Education at the University of North Florida, nor did Dr. Siudzinski tell him that he was expected to get a competency in behavior modification. Finally, in the discussion of the question of the necessity for competency in behavior modification at the employment stage, several other members of the faculty of the Department of Special Education, University of North Florida, offered testimony. One of those witnesses was Clement Van Nagel who testified that he had been hired to teach behavior modification and the policy that behavior modification competency was necessary had been discussed at faculty meetings which Dr'. Sedlak attended. Another faculty member in the Department of Special Education, Thomas Serwatka, testified in the hearing and stated although he was not told that he would be required to teach behavior modification, he was told by Dr. Siudzinski that. The Department of Special Education was competency based and that it was behavioral in its orientation and Siudziriski wanted to know if Serwatka had a background in behavior modification. Another faculty member in the Department of Special Education who testified was Mary D' Zamko. Mrs. D' Zamko testified that when she was hired she was expected to have a competency in behavior modification and that to her knowledge other faculty members were held to the same standard of competency. She also indicated that this expectation was made clear in the staff meetings in which Dr. Sedlak was in attendance. Finally, Robert Gonzales, a member of the faculty of the Department of Special Education, testified that when he was hired that there was an expectation that he have a competency in behavior modification. From the testimony offered in the course of the hearing it is established that Dr. Siudzinski apprised Dr. Sedlak of the expectation that Dr. Sedlak have a competency in behavior modification to be a member of the faculty at the University of North Florida and it is further established that this requirement was enunciated at intervals during the course of faculty meetings at the University of North Florida which Dr. Sedlak attended. Petitioner's Exhibit #9, is a composite exhibit which was admitted during the course of the hearing. This exhibit contains a letter of December 9, 1974, from Dr. Siudzinski setting out the period of appointment of Dr. Sedlak as Associate Professor of Education effective December 16, 1974, for a period to run through June 30, 1975. This letter sets out the major duties which Professor Sedlak was expected to perform. Professor Sedlak accepted the contract and appropriate administrative officials approved the hiring. From the time of the initial employment up to and including the date of the annual evaluation, which was held on June 3, 1975, nothing of any significance occurred. The annual evaluation of Dr. Sedlak's performance was conducted by Dr. Siudzinski on June 3, 1975. Prior to that date Dr. Sedlak was recommended for appointment for the summer quarter of 1975 effective June 23, 1975, as shown by Petitioner's Exhibit #14, admitted into evidence. Dr. Sedlak was approved for that quarter. In the evaluation session of June 3, 1975, mention was made of a problem which Dr. Siudzinski felt that Dr. Sedlak had in understanding, a so called "Discrepancy Evaluation Model." Dr. Siudzinski felt that from his observation of Dr. Sedlak's performance in instructing on this model, that Dr. Sedlak did not have a satisfactory understanding of it. Petitioner's Exhibit #15, admitted into evidence is a memorandum of June 5, 1975 dealing with the problem of Sedlak's understanding and his contribution to the underlying project. The fo1low up of the June 3, 1975 evaluation conference is found in a memorandum of June 5, 1975, which is Petitioner's Exhibit #15, admitted into evidence. In addition a memorandum was filed to the folder of Dr. Sedlak, dated June 27, 1975, from Dr. Siudzinski. A copy of this memorandum is Petitioner's Exhibit #17, admitted into evidence and the exhibit shows that Dr. Sedlak was recommended for reappointment for the year 1975- 1976. A copy of the offer of reappointment is found in Petitioner's Exhibit #19, admitted into evidence. This is an August 1, 1975, letter from Dr. Siudzinski indicating that the period of employment is from September 15, 1975 through June 15, 1976. Dr. Sedlak accepted this employment. Other action taken on the Petitioner's employment in 1975 would include a recommendation from Dr. Roy L. Lassiter, Jr., Vice President and Dean of Faculties, that Dr. Sedlak be given credit toward tenure at the University of North Florida for service at other institutions of higher education. This letter is in the form of a recommendation and a copy of the letter is Petitioner's Exhibit #21, admitted into evidence. The next notable event occurred in October or November of 1975, when an unidentified number of students objected to Dr. Siudzinski that Dr. Sedlak had assigned tests in his courses and not given those tests; to be followed by a period in which a group of tests were given to the students at one sitting. It is not clear that these complaints were made known to Dr. Sedlak and no official indication of these complaints was placed in the departmental file kept on Dr. Sedlak. In January, 1976, under a grant program, members of the faculty of the Department of Special Education, University of North Florida conducted a series of workshops on the subject of the aged. One of these workshops was conducted in St. Augustine, Florida on January 24, 1976. A part of the program was presented by Dr. Sedlak and Dr. Siudzinski observed part of the presentation. According to Dr. Sedlak, in a debriefing session Dr. Siudzinski indicated that he felt that certain of the information was irrelevant and counter to the behavioristic philosophy of the Department, to which Dr. Sedlak stated he protested and indicated that he had taught what was in the prescribed textbook. Dr. Sedlak testified that the subject then turned to Dr. Siudzinski's question of him, whether Sedlak had told anybody else about an incident which he had seen between a student and Siudzinski. Sedlak testified that the incident spoken of referred to Siudzinski being seen by Sedlak embracing and kissing a student, whom Sedlak knew. Sedlak claimed that he told Siudzinski that this incident was none of Sedlak's business and that he had said nothing. The subject, per Sedlak's testimony, then turned to whether Sedlak would be at the University of North Florida next year and Siudzinski supposedly said he really didn't know if Sedlak would fit in. The "incident" spoken of was supposed to have occurred a couple of weeks before this conversation. Siudzinski's version of the workshop debriefing was that he criticized Sedlak for being at variance with the purpose of the workshop, in that Sedlak was labeling matters and not dealing in the observable and measurable. Moreover, Siudzinski testified that some of the things that Dr. Sedlak was dealing in were contrary to what was being said by others participating in the workshop. Siudzinski claims he then brought up a complaint by a student which had been relayed through a secretary in the office of the Department of Special Education. Sedlak, by Siudzinski's statement, was kidding the student by saying that he had seen Siudzinski parked in front of her house. This was the total account of the January 24, 1976 debriefing, from Siudzinski's point of view. Dr. Siudzinski denies any incident in which he embraced a student or kissed a student. The subject was brought up again on January 27, 1976, after Siudzinski had attended one of Dr. Sedlak's classes for an hour and a half and spoke with him about the teaching. During the course of that conversation, Sedlak accused Siudzinski of "being on his back" and a heated argument ensued. Sedlak claims Siudzinski admitted being on his back about the so called "incident" with the "student" and Siudzinski claims that Sedlak told him that he would smear his, Siudzinski's name and family, so that he could not hold his head up in the community. Siudzinski said that he responded to this statement by asking Sedlak to resign. Another subject which was brought up on January 27, 1976, during the course of the discussion of the class, was Siudzinski's inquiry as to why Sedlak was teaching the I.T.P.A. tests, which Siudzinski thought was Inappropriate, by Sedlak's testimony. Dr. Siudzinski did not testify on whether he commented on teaching the I.T.P.A. or not. He simply said that he found some good things and some bad things in Dr. Sedlak's teaching. After the discussion of January 27, 1976, Dr. Siudzinski called Dr. Lassitor the next morning and told Dr. Lassiter of his concern about the accusations which Dr. Sedlak had placed against him on the subject of the student incident. Dr. Siudzinski observed another of Dr. Sedlak's classes on January 28, 1976. About this time period, Dr. Siudzinski prepared a first draft of a document entitled Discrepancy Evaluation Model Competencies which he intended to evaluate Dr. Sedlak on. Petitioner's Exhibit #24 is this document. In addition, Dr. Siudzinski submitted as a part of a memorandum of February 2, 1976, certain competencies in the behavior modification area which he expected to evaluate Dr. Sedlak on. The copies of this memorandum and the evaluation on behavior modification are found as Petitioner's Exhibit #25, admitted into evidence. These items found as Petitioner's Exhibits #24 and #25 were provided for Sedlak. These discussions mentioned above, between Dr. Sedlak and Dr. Siudzinski, were continued on February 5, 1976. On February 6, 1976, a meeting was held between Dean White, the then Dean of the College of Education, University of North Florida; Dr. Andrew Robinson; Dr. Siudzinski and Dr. Sedlak with the idea of trying to reconcile the differences between Dr. Siudzinski and Dr. Sedlak. The meeting also had as a topic of discussion, the propriety of requiring Dr. Sedlak to demonstrate his competency in behavior modification and the subject of the discrepancy evaluation model. There is a memorandum of February 9, 1976, indicating that there was a conversation between Professor Sedlak and Siudzinski. This memorandum is Petitioner's Exhibit #27, admitted into evidence. Dr. Sedlak does not recall this conversation and Dr. Siudzinski offered no testimony about it. A meeting was held February 10, 1976, between Dean White, Dr. Robinson, Dr. Sedlak and Dr. Siudzinski in which Dean White and Dr. Robinson suggested that If Dr. Sedlak had a complaint to make about Siudzinski's morals or behavior, he should state them. Sedlak's reply was that he had noting to say at that time. Dr. Robinson recalls that other subjects in the conversation were the question of Dr. Sedlak's competency in behavior modification and the possibility of offering an assistance quarter to improve Dr. Sedlak's knowledge of behavior modification. Siudzinski was to go back and think about what to do on the subject of the assistance quarter. In this same time frame there were several conversations between Dr. Siudzinski and Dr. Lassiter concerning Dr. Sedlak's performance and Dr. Lassiter had indicated that he thought that perhaps an assistance quarter was a proper aid, even though the matter concerned Dr. Sedlak's qualifications as opposed to his teaching skills. This subject of an assistance quarter was also discussed between Dr. Lassiter and Dr. Robinson at about this time. A meeting was held on February 13, 1976, between Dr. Siudzinski and Dr. Sedlak. A memorandum which summarized the results of that meeting is Petitioner's Exhibit #29, admitted into evidence and made a part of the record herein. This particular meeting was an evaluation session in which Dr. Siudzinski discussed one of the courses which Dr. Sedlak was teaching, to wit, EEC 604. He also mentioned the S.E.P.A. program audit which Sedlak was to participate in. Discussion was entered into about remedying the deficiency in behavior modification, which Dr. Siudzinski felt that Dr. Sedlak had. Suggestions offered were; taking a class and peer evaluation. The Discrepancy Model of Evaluation was also discussed and Dr. Siudzinski removed Dr. Sedlak from that project. The removal occurred because Dr. Siudzinski had talked to Professor D'Zamko and come to the conclusion, based on that conversation and his own observations, that Sedlak did not understand the project sufficiently and was not providing equitable participation with D'Zamko. Dr. Sedlak had not boon privy to the conversation between D'Zamko and Siudzinski. Dr. Sedlak complied with the request pertaining to EEC 604 and apparently complied with the request pertaining to the S.E.P.A. program audit. On February 27, 1976, a memorandum which is Petitioner's Exhibit #32, was sent from Dr. Siudzinski to Dr. Sedlak requesting an appointment between the two. Dr. Sedlak did not respond to the memorandum and a memorandum of March 8, 1976 was sent as a follow up requesting a meeting. This memorandum, Petitioner's Exhibit #33, admitted Into evidence, specifically sets out the topic of the meeting. One of the topics of the meeting, which was conducted on March 10, 1978, concerned the efforts which Dr. Sedlak had taken to cover one of his class sessions, EEC 604. The form that was filled out to have a sub-stitute teacher showed the wrong date. The form additionally indicated that Dr. Van Nagel would conduct the entire class, which was not possible since Dr. Van Nagel had a scheduling conflict for the first two hours of the four hour session, which was to be the length of time of Dr. Sedlak's class on that occasion. Dr. Sedlak had requested Dr. Cathy Hartman, another member of the faculty, to cover the first part of the class, and this was not reflected on the form. Dr. Hartman was unable to cover the class and this knowledge was only made known at 5:00 P.M. the day before the class session. The first part of the class to be covered was one in which a test was given to the students. Dr. Siudzinski took over that portion of the class and found the test instrument was not fair to those persons who did not have miniature calculators and the substance of the test was not acceptable in his view. A summary of the evaluation session of March 10, 1976, is Petitioner's Exhibit #34, admitted into evidence and made a part of the record herein. Dr. Siudzinski requested that he be provided with the test instruments involved in the EEC 604 course. One of the test instruments was the one given by Dr. Siudzinski and is Petitioner'S Exhibit #35, admitted into evidence. Of the remaining test instruments, one or more were never provided to Dr. Siudzinski. Dr. Sedlak's explanation was that some of the tests had been destroyed and some of the tests were found subsequent to the time that he was removed from the Department of Special Education. Another subject in the evaluation session of March 10, 1976 was the discussion of behavior modification. No resolution was reached on the subject of the possibility of Dr. Sedlak taking a course in behavior modification and Dr. Siudzinski agreed to look into this further. The memorandum covering the evaluation session indicates that an agreement was reached on a meeting to be held with Dr. Andrew Robinson on March 12, 1976, to discuss the assistance quarter, which was to begin March 26, 1976. Dr. Sedlak claims that no such discussion was entered into concerning the subject of assistance quarter or a meeting with Dr. Robinson. Dr. Siudzinski remembers that the subject of setting up an assistance quarter had been discussed in an evaluation session, although he does not mention which session. In fact, after a memorandum of notice, a meeting was held with the then Dean Designate Andrew Robinson on March 18, 1976. At the meeting Dean Robinson had a copy of the memorandum summary of the meeting of March 10, 1976 between Dr. Sedlak and Dr. Siudzinski which is Petitioner's Exhibit #34, admitted into evidence. Dr. Robinson indicated that he felt that the problem with the class coverage was serious. Dr. Sedlak responded that he thought this was trivial. Nonetheless, Dr. Robinson instructed Dr. Sedlak that these matters would begin to pile up. The subject of the assistance quarter was brought up, and Dr. Robinson indicated that if Dr. Sedlak refused to participate in the assistance quarter and resigned, he wanted to know what Dr. Siudzinski would provide in the way of an employment reference. Dr. Siudzinski indicated that he would not volunteer any derogatory information about Dr. Sedlak to a prospective employer. The subject of an assistance quarter was concluded by Dr. Robinson telling Dr. Sedlak that he would expect the assistance quarter to he a part of the spring quarter duties of Dr. Sedlak. Dr. Sedlak, in his testimony in the hearing, denied that any conversation on the assistance quarter was entered into. Dr. Siudzinski again asked for the test instruments which were involved in EEC 604 and Dr. Sedlak refused to give these instruments to Dr. Siudzinski but indicated that he would give them to Dr. Robinson. As stated before, some of these test instruments were never provided to Dr. Siudzinski, nor were they provided to Dr. Robinson. Dr. Robinson also asked Dr. Sedlak at the meeting were there reasons other than professional ones why Dr. Siudzinski would be putting Dr. Sedlak through an assistance quarter. Dr. Sedlak responded that he would not deal with that at that time. After the meeting between Siudzinski, Robinson, and Sedlak, Sedlak came to Robinson's office and stated that the reason Siudzinski was after him was because one day Sedlak had caught Siudzinski and a student in a compromising situation. Robinson responded to this statement by saying that if Sedlak would make formal charges against Siudzinski he would Investigate and discipline Siudzinski if it were true; however, if It was untrue, Dr. Sedlak would be disciplined. Dr. Sedlak said he would need time to think about such a complaint. He never did offer to make a formal complaint. Between the winter and spring quarters of 1976, Dr. Sedlak entered the hospital for a kidney disorder. He had signed out for a car from the University on the day he entered the hospital. The car was signed out from the University to go to Lake City, Florida to teach a workshop for the aged. When he became ill he went to the hospital and parked the car, leaving the car with the keys in the ignition. He then called Dr. Siudzinski and told him he could not attend the workshop the next day because he was in the hospital, after which he hung up. He did not indicate to Dr. Siudzinski which hospital he was in. Through the efforts of the administration and in particular Dr. Siudzinski, it was determined that Dr. Sedlak was in Memorial Hospital, Jacksonville. Dr. Sedlak did not indicate his whereabouts until the next day, at which time he called Dr. Siudzinski and indi-cated that the car was in the Memorial Hospital parking lot. Dr. Robinson was concerned about the health issue and offered to allow Dr. Sedlak to assume some other duties other than teaching in the spring quarter of 1976. Dr. Sedlak declined his offer and returned to his teaching duties. Dr. Robinson made clear that this return to teaching would cause Dr. Sedlak to be treated as any other teacher even though he was going to be on an assistance quarter. As a part of this discussion, Dr. Robinson required Dr. Sedlak to produce a letter saying he was capable of performing his teaching duties Dr. Sedlak responded by correspondence of March 29, 1976, which is Petitioner's Exhibit #39, admitted into evidence. Dr. Siudzinski followed this letter by a letter of March 30, 1970 to Dr. Sedlak which is Petitioner's Exhibit #40, admitted into evidence and indicates that in the spring quarter, Dr. Sedlak would perform duties as an Associate Professor in the Department of Special Education, as well as the additional responsibilities that had been discussed, meaning the assistance quarter. Again Dr. Sedlak denies that the assistance quarter was to be performed. On April 1, 1976, Dr. Siudzinski discussed a meeting of March 29, 1976, between he and Sedlak and reiterates his request for the exams, the five examinations which were used In the winter quarter course EEC 604. Petitioner's Exhibit #42, admitted into evidence, is a composite exhibit containing two examinations of the winter quarter of 1976 and three sets of answers. These items were found in June or July, 1976, but as stated were never given Dr. Siudzinski. Another evaluation session was held between Dr. Siudzinski and Dr. Sedlak on April 22, 1976. A summary of this evaluation session is found in Petitioner's Exhibit #43, admitted into evidence and made a part of the record herein. Some of the subjects covered in the evaluation session included a discussion of the attendance of a workshop on behavior modification, and another request that the examinations for the EEC 604 course be provided. He was also requested to provide the instruments and techniques involved in that course and other courses being taught by Dr. Sedlak. These were provided. An inquiry was made about the progress that Dr. Sedlak had made in mastering Discrepancy Model Competencies contained in the list of January 30, 1976. Other matters covered were the progress which Dr. Sedlak had made on the mastering of behavior modification competencies set up in the memorandum of February 2, 1976. It was also discussed that Dr. Sedlak was not answering his phone in the office. Finally, Dr. Siudzinski indicated that he might be visiting Dr. Sedlak's classes in the future and requested his list of competencies that were to be covered. Dr. Sedlak stated that he would not provide the exams in the EEC 604 class without speaking to the union. He made a similar reply on the request for instruments and techniques in other courses and a similar reply about progress which he had made in mastering the Discrepancy Model Competencies. Additionally, he said he refused to be tested on the Discrepancy Model Competencies, since he was an Associate Professor. He made the same response to the inquiry on progress on behavior modification competencies. He also stated that many of the behavior modification competencies were incorporated in his classes. (Sedlak also taught several sessions on behavior modification for the Duval County School Board outside his normal duties.) The complaint about answering the phone was responded to by Dr. Sedlak in which he said that when he was busy with someone in the office or working on something important, it was not necessary to answer the phone. He agreed to produce the list of competencies to be covered in his upcoming classes. The summary of the evaluation goes on to request in writting copies of the exams in the EEC 604 course for the winter quarter 1976. It also requests in writting, copies of the instruments and descriptions of techniques in evaluating courses being taught by Dr. Sedlak. It requests in writting an answer on progress made in mastering the Discrepancy Model Competencies of January 30, 1976 and the progress made in mastering behavior modification competencies attached to the memo of February 2, 1976. In connection with the discussion of instruments and techniques in evaluating students in the courses being taught by Dr. Sedlak, Petitioner's Composite Exhibit #44, admitted into evidence, is copies of classes assigned to be taught by Dr. Sedlak for the period of his stay with the Department of Special Education. On April 27, 1976, Dr. Sedlak responded to the memorandum on the meeting on April 22, 1976. In this memorandum he suggested that the tests were not kept and that he does not traditionally keep tests and asked why the matter of the tests of the EEC 604, winter quarter kept coming up. He stated that he provided evaluation instruments for EEC 500 as enclosed and stated that the other evaluation instruments were not kept for other courses. His response to the Discrepancy Model of Evaluation was that he had been removed from responsibilities in the area and made no further response. Finally, in response to the question on behavior modification competencies, he simply stated that he had given workshops in behavior modification for Duval County Schools. On May 28, 1976, a memorandum was sent to Dr. Sedlak from Dr. Siudzinski requesting a meeting for the annual evaluation to be held June 2, 1976. During the spring quarter of 1976, Dr. Roy L. Lassitor met with members of the facultv of the Department of Special Education other than Dr. Siudzinski and Dr. Sedlak and requested them to answer several questions. Me asked them if Dr. Siudzinski was involved with any female students to their knowledge, to which they responded no. He asked them if the faculty was aware of any incident between Dr. Siudzinski and some student and they responded yes, but only as a rumor. He asked them if they had confidence in Dr. Siudzinski as chairperson and they responded that they did. The persons contacted were Dr. Van Nagel, Dr. Serwatka, Mrs. D'Zamko and Dr. Gonzales. In that quarter, Dr. Robinson met several times with Dr. Siudzinski to try to clear up the progress that had been made by Dr. Sedlak on the assistance quarter. He also met with Dr. Sedlak and reminded him that he expected Sedlak to perform the assistance quarter laid out by Siudzinski. Respondent's Exhibit #2, admitted into evidence, is a list of Dr. Robinson's suggestions for the assistance quarter. In other meetings with Siudzinski, Siudzinski stated that very few things that Dr. Sedlak had been requested to do had been done, and that he thought that Sedlak should be terminated. Some of the complaints that Siudzinski related to Dr. Robinson were, intimidation of secretaries, graduate students and assistants and disparaging remarks about Siudzinski. Dr. Robinson told Siudzinski to but these matters in writting and after reviewing the case, Dr. Robinson concurred with Siudzinski that Dr. Sedlak's contract should not be renewed. There was a meeting between Dr. Sedlak and Dr. Lassiter which has been previously referred to in the body of facts, specificallv the meeting between June 2, 1976 and June 10, 1976. In that meeting Dr. Lassiter offered Dr. Sedlak the opportunity to make charges against Dr. Siudzinski for his alleged improper conduct. Lassiter stated that he would remove the Chairman if it was a true claim and proceed to terminate Dr. Sedlak for cause if the charges of improper conduct with a student wore false. Sedlak did not bring a charge. An examination of the evidential facts indicates that the recommendation of the non-renewal of the Petitioner's contract, (1) was not based upon a constitutionally impermissible reason, (2) was not violative of any of the Petitioner's property rights and (3) complied with written standards, criteria, and procedures prescribed by the Board of Regents and university regulations. The briefs filed by the parties have been examined and the elements of those briefs which are deemed to be meritorious have been incorporated into the findings of fact of the undersigned.
Recommendation It Is recommended that the Respondent, University of North Florida, not renew the Petitioner's contract of employment with the University of North Florida beyond June 15, 1977 and that the Petitioner be found unentitled to restoration of rights and privileges previously enjoyed before the recommendation of non-renewal of his employment contract with the University of North Florida. DONE AND ENTERED this 10th day of June, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June COPIES FURNISHED: Mr. Anthony Demelas American Federal of Teachers 160 College Street Burlington, Vermont Delbridge L. Gibbs, Esquire Post Office Box 447 Jacksonville, Florida 32201 Dr. Joseph Sedlak 5336 Windemere Drive Jacksonville, Florida 32211 Kenneth A. Megill Florida Education Association/United 208 West Pensacola Street Tallahassee, Florida 32304
Findings Of Fact Thomas L. Berkner, Petitioner, holds a continuing contract status as principal of elementary school in Orange County. During the 1977-1978 school year Petitioner was assigned as principal of the Winter Garden Elementary School which had a student enrollment of approximately 250 and consisted of kindergarten, first and second grades only. The Orange County School Board consolidated Winter Garden and Dillard Street Elementary Schools for the school year 1978-1979 leaving one principal for the school which retained the separate facilities, but was called Dillard Street Elementary School. The job of principal of the consolidated schools was given to the Dillard Street School principal and Petitioner was transferred to the position of Program Coordinator, ESEA Title I at the same salary he was paid as principal. The ESEA Title I Program is a federally funded project to serve economically disadvantaged and educationally deprived or disadvantaged children in grades 1, 2, and 3 but math is extended to grades 4, 5, and 6. The pay grade for Program Coordinator Title I was pay grade 46 and when first assigned Petitioner's personnel records reflected this pay grade (Exhibit 3). However, the records were corrected to reflect his continuing contract status and his pay grade was increased to 48 (Exhibit 4) the same pay grade for elementary school principals for schools with enrollment below 800. Although program coordinators are on annual contract status, Petitioner does not, while serving in this capacity, lose the continuing contract status as an elementary school Principal which he acquired in 1970. Scholastic and experience requirements for various positions in the Orange County school system are revised when these positions are advertised for applicants and generally reflect the highest qualities available in the local job market. At the present time elementary school principals and program coordinators are required to hold a masters degree. In addition program coordinators must be certified in elementary education and supervision, and have a minimum of five years teaching experience at the elementary level. Elementary principals must be certified in elementary school administration and supervision, and have a minimum of five years teaching experience (Exhibits 5, 7, and 9). Both principals and program coordinators perform primarily administrative functions as opposed to teaching functions. The principal is given overall responsibility for the school to which he is assigned and has certain statutory duties and authority that are not visited upon other positions. These include administrative responsibility for evaluating the educational program at his school, recommending the transfer and assignment of personnel at his school, administrative responsibility for school records, authority to administer corporal punishment and suspension of students, and perform such other duties as may be assigned by the Superintendent. Those duties assigned by the Superintendent are contained in the Job Description, Elementary School Principal (Exhibit 7) and phrased in the lexicon of education administrators, call upon the principal to promote, develop, coordinate, formulate, involve, manage and initiate programs and relationships to optimize the effectiveness of the school. The job description of the Program Coordinator ESEA, Title I (Exhibits 5 and 9) assigns to him responsibility for supervision of the Title I Program. The program coordinator's typical duties include interpreting the philosophy and goals of the program, assisting teachers, planning activities, participating in program planning, assisting principals and staffs, preparing and submitting reports and records, and performing other duties that may be assigned. Both jobs involve dealing with teachers and students, supervision, and administrative functions in carrying out the program for which each is responsible. The principal carries out his duties in the school to which he is assigned and works from his office while the program coordinator is responsible for the Title I program in several schools and spends a large part of his time away from the "office" he shares with other program coordinators. The principal has a secretary while the program coordinator must share a secretary with other program coordinators. However, one witness described the secretary at one elementary school as a school secretary and that the secretary did not work solely for the principal. Of those 15 typical duties of an elementary school principal listed on Exhibit 7, the program coordinator performs all but 5 and they involve duties that may be described as school-oriented rather than program-oriented. Of those 7 typical duties listed on Exhibit 9, Job Description for ESEA Title I Program Coordinator, the elementary school principal performs all except serve on Title I advisory council. Several witnesses testified that the position of principal was more prestigious than that of program coordinator, however, when all the evidence is considered it appears that prestige, like beauty, is in the eye of the beholder. While testifying in his own behalf Petitioner averred that as a program administrator he had no administrative duties and no personnel duties. Other program coordinators testified that they did have administrative and personnel duties. Petitioner acknowledged that most of the typical duties listed on Exhibit 7 were also performed by program coordinators.
The Issue The issues are whether Respondent has violated Sections 231.28(1)(b), 231.28(1)(f), and 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida teaching certificate number 335745. He is certified to teach Social Science Education through June 30, 1998. The Duval County School District employed Respondent as a teacher at Highlands Middle School for the 1993-1994 school year. Respondent taught geography during his first period class at the middle school. On or about February 10, 1994, a student in Respondent's classroom, C. L., was talking to a student in an adjacent classroom through a hole in the wall. Respondent lost his temper and threw a geography book at C. L., hitting him in the head. Respondent's testimony that the book slipped from his hand is not persuasive. After the book-throwing incident, the Duval County School District transferred Respondent from Highlands Middle School to the district's book depository. Two months later, the school district transferred Respondent to Joseph Stilwell Middle School for the remainder of the 1993-1994 school year. The principal of Highlands Middle School, George Reynolds, prepared Respondent's annual evaluation on March 1, 1994. Mr. Reynolds found that Respondent's performance was unsatisfactory in the following two areas: (a) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; and (b) shows sensitivity to student needs by maintaining positive school environment. These ratings resulted in a deduction of four points and an overall "unsatisfactory" evaluation. Mr. Reynolds, however, inadvertently marked Respondent's overall evaluation as "satisfactory." The Duval County School District transferred Respondent to Landon Middle School for the 1994-1995 school year. Within weeks, it became apparent that Respondent had difficulty controlling the students in his classes. In September 1994, Respondent called one of his student's a "trashy kid." During a subsequent parent-teacher conference, Respondent referred to his students as "bad" kids. As to classroom control, he stated that "a teacher can only do so much" and that "his hands were tied." After the parent-teacher conference, the Landon Middle School principal, Elaine Mann, had a conference with Respondent. During this conference, Respondent stated again that he had trouble maintaining classroom control because he had a number of bad students. Ms. Mann and Respondent agreed that she would observe his second period class on October 3, 1994. Ms. Mann observed Respondent's sixth grade World History class on the agreed date. Respondent's performance during this observation was unsatisfactory in the following ways: (a) Respondent allowed students to spend too much time on one activity; (b) Respondent's lesson did not include a way to evaluate classwork; (c) Respondent's lesson did not include an introduction or summary; (d) Respondent's lecture was disjointed; and (e) Respondent's stated objectives were not appropriate. In a memorandum dated October 6, 1994, Ms. Mann described Respondent's strengths and weaknesses and included recommendations to improve his teaching techniques. Ms. Mann conducted a conference with Respondent on October 10, 1994, to discuss her observations and recommendations. Ms. Mann observed Respondent's eight grade U.S. History class on November 14, 1994. For the second time, Ms. Mann found that Respondent's performance was unsatisfactory. A memorandum dated November 16, 1994, lists the following weaknesses: (a) Respondent did not require students to be in class on time; (b) Respondent wasted instructional time; (c) Respondent permitted students to sleep in class; (d) Respondent did not introduce the lesson or use a handout appropriately; (e) Respondent's lecture/discussion lacked organization; (f) Respondent turned his back to one side of the room for most of the period; and (g) Respondent only interacted with six students. Ms. Mann provided Respondent with a written memorandum dated November 16, 1994, setting forth his strengths, weaknesses, and recommendations for improvement. She advised Respondent that she would request assistance for him from the Professional Development office. Ms. Mann wanted that office to establish a support team to work on a "success plan" to improve Respondent's performance. Ms. Mann set a goal for Respondent to achieve a satisfactory evaluation by March 15, 1995. On January 3, 1995, Ms. Mann observed Respondent's class informally. She found that the students were not under control. Their behavior towards Respondent was disrespectful. Ms. Mann and Respondent signed a written success plan on January 11, 1995. The plan included strategies to meet the following objectives: (a) demonstrate effective classroom management skills; and (b) demonstrate effective presentation of subject matter. A member of the support team, Marlene Rasmussen, observed Respondent on January 19, 1995 and January 23, 1995. The focus of the observations was Domain Four, presentation of subject matter. Based on her observations, Ms. Rasmussen recommended that Domain One, lesson planning, be added to Respondent's success plan. Ms. Rasmussen also recommended that Respondent attend a workshop to learn effective teaching behaviors. Ms. Mann arranged for Respondent to attend this three-day workshop. On January 13, 1995, Ms. Mann received a complaint that Respondent used the word "shit" in addressing a student in his class. Ms. Mann admonished Respondent regarding his inappropriate language in a written memorandum dated January 30, 1997. Peggy Clark, a member of the in-service support cadre, provided assistance to Respondent beginning in February 1995. She worked with Respondent in the area of lesson planning. Ms. Clark observed Respondent's classroom performance on two occasions. She conducted two post-observation conferences with Respondent. Ms. Clark was unable to complete her duties in assisting Respondent because of his absences. Louise Peaks, the eight-grade house administrator, was a member of Respondent's success team. As a resource person, she assisted him, on an informal basis, by providing him with feedback from his student disciplinary referrals. She counseled him during casual conversations in the hallway and in his classroom. Respondent never implemented any of the advice or suggestions that Ms. Peaks gave him. Ms. Peaks received complaints from Respondent's fellow teachers concerning his failure to follow school procedures. He allowed his students to come and go as they pleased. His classroom was very disorganized. Pat Barker, the sixth-grade house administrator, was a member of Respondent's success team. She observed him on March 10, 1995, and March 13, 1995. Ms. Barker found that Respondent's students were disorganized. She saw no evidence of classroom management. According to Ms. Barker, Respondent appeared to be unaware whether certain students were in or out of the room. Ms. Barker observed that a majority of the students were uninvolved in Respondent's lesson. Some of the students were asleep. Respondent was not alert to student misbehavior. Ms. Mann issued her annual evaluation of Respondent on March 15, 1995. She found that his over-all performance was unsatisfactory. Specifically, Respondent's performance was unsatisfactory in the following areas: (a) demonstrates ability to plan and deliver instruction; (b) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (c) shows sensitivity to student needs by maintaining positive school environment; (d) demonstrates abilities to evaluate instructional needs of students; and (e) shows evidence of professional characteristics. On May 26, 1995, Ms. Mann received a written complaint from the teacher whose classroom was located above Respondent's classroom. The complaint concerned disturbing noise from Respondent's room on May 25 and 26, 1995, days during which standardized tests were being administered. Following receipt of Ms. Mann's evaluation, Respondent requested a transfer to another school for the 1995/1996 school year. In response to this request, the Duval County School District transferred Respondent to Paxon Middle School. On August 24, 1995, Respondent's new principal, Quentin Messer, held a private conference with Respondent to develop a plan to improve Respondent's teaching performance. That same day, a written success plan was signed by Respondent and Mr. Messer. The objective of the plan was to provide Respondent with assistance in demonstrating effective classroom management skills and effective presentation of subject matter. The success plan identified support team members, outlined strategies to meet the objectives, and set timelines for completion of proposed activities. Ms. Arnette Smith was a cadre assistant and trainer from the Professional Development office during the 1995/1996 school year. On September 18, 1995, Ms. Smith received a request to assist Respondent in improving his lesson planning skills. Ms. Smith met with Respondent and Dr. Ben Titus, assistant principal, on September 22, 1995. During this meeting, Ms. Smith reviewed Respondent's success plan and arranged a time for an informal observation in Respondent's classroom. In a subsequent meeting, Respondent and Ms. Smith discussed the ways she could assist him with his lesson plans. Respondent expressed a negative attitude toward his students during his conversations with Ms. Smith. He told her that his students did not have values and did not want to learn. Ms. Smith observed Respondent informally on October 11, 1995. After the observation, Ms. Smith discussed her suggestions with Respondent and provided him with a copy of her notes, which outlined specific recommendations. Ms. Smith offered to demonstrate the planning and teaching methods that Respondent could use to enhance his classroom effectiveness. Principal Messer observed Respondent formally and informally through out the 1995/1996 school year. Most of his informal observations were in response to complaints from students, parents, and other teachers. On October 25, 1995, Mr. Messer conducted his first formal observation of Respondent. Mr. Messer found that Respondent's performance was at the lowest or next to the lowest level in 17 out of 24 criteria. Mr. Messer found that Respondent's lesson plan, consisting of one word, was inadequate. Respondent wasted valuable class time collecting papers, sharpening pencils, and arguing with students. Mr. Messer noted that there was no rapport between Respondents and his students. Ms. Smith, personnel development cadre assistant, met with Respondent again on November 7, 1995. The purpose of the meeting was to prepare for her observation of Respondent's class at a later time. Ms. Smith and Respondent reviewed the planning- data form in detail. She advised Respondent to have the form complete prior to the planned observation on November 9, 1995. After observing Respondent on November 9, 1995, Ms. Smith found that Respondent needed improvement in thirteen of twenty-four indicators. Respondent had not adopted or followed any of Ms. Smith's suggestions. He was inadequately prepared and had not completed the planning documents. Ms. Patricia Downs, house administrator of the sixth grade, provided Respondent with assistance in the 1995/1996 school year. She conducted formal and informal observations of Respondent in November 1995, in the area of classroom management, Domain Two. Classroom management was an area of concern due to the number of complaints received from students, parents, and faculty regarding the noise and confusion in Respondent's classroom. Ms. Downs observed Respondent's sixth grade social studies class on November 13, 1995. During that observation, Respondent exhibited a total of 10 effective behaviors and 44 ineffective behaviors. For example, she observed that students were sleeping, working off-task, and otherwise not participating in the lesson, while Respondent proceeded as if those students were not present. The following day, November 14, 1995, Ms. Downs reviewed her findings with Respondent. She discussed specific incidences showing Respondent's lack of classroom control and made suggestions to improve his classroom management. On December 4, 1995, Mr. Messer made a written suggestion that Respondent contact the Duval County School Board's Wellness Center because he appeared nervous and disoriented. On February 6, 1996, Mr. Messer conducted his second formal observation of Respondent. Mr. Messer concluded that Respondent's performance was only marginally satisfactory. That same day, Mr. Messer advised Respondent that if his performance was not elevated to an acceptable level by March 15, 1996, he would be given an unsatisfactory evaluation for the 1995/1996 school year. Mr. Messer continued to observe Respondent informally after February 6, 1996. Based on these informal observations, Mr. Messer concluded that Respondent had not improved over the course of the school year in any of his areas of deficiency. Principal Messer asked Dr. Titus, assistant principal of Paxon Middle School, to assist Respondent with his success plan. Dr. Titus coordinated cadre support for Respondent. On March 7, 1996, Dr. Titus observed Respondent in his classroom. When Dr. Titus arrived for the observation, three students in the hall said that Respondent would not let them enter the room. Respondent explained that he closed the door because the students were late. During his observation, Dr. Titus noted a lack of order, confusion, and negative interaction between Respondent and his students. A majority of the students were off-task because Respondent had no apparent system for classroom management. Respondent's performance was very unsatisfactory. Ms. Downs, sixth-grade house administrator, observed Respondent for the second time on March 8, 1996. She again concluded that Respondent's performance was unsatisfactory. Ms. Downs reviewed her observations with Respondent on March 13, 1996. During that meeting, Respondent told Ms. Downs that he considered the school to be a "cesspool." He also stated that the students were impossible to teach. On March 29, 1996, Mr. Messer issued an overall unsatisfactory annual evaluation for Respondent. This decision was based on the results of Mr. Messer's formal and informal observations and the input he received from Dr. Titus, Ms. Smith, and Ms. Downs. Pursuant to a resignation agreement with the Duval County School District, Respondent resigned his employment effective June 12, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order revoking Respondent's teaching certificate for one year. DONE AND ENTERED this 1st day of June, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1998. COPIES FURNISHED: J. David Holder, Esquire 14 South Ninth Street DeFuniak Springs, Florida 32433 Francis W. Keefe 6176 Fordham Circle Jacksonville, Florida 32217 Kathleen M. Richards, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-2500 Jerry W. Whitmore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether the Respondent, a teacher under contract with the Orange County School Board, should be terminated from his employment based on misconduct in office, which occurred on January 12, 1989. Whether the Respondent, a teacher under contract with the Orange County School Board, should be terminated from his employment based on gross insubordination or willful neglect of duty for failure to follow a prior directive from his principal not to physically touch a student, except under very limited conditions. Whether such actions of Respondent are so violative of the legitimate expectations of professional conduct of a teacher as to impair the effectiveness of service to the school district by the Respondent and to pose a serious danger to the continued safety, health and welfare of the students of Orange County, Florida.
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was a licensed teacher, having taught in the Orange County School System for 21 years and at Conway Middle School for over 19 years. Respondent's classroom evaluations over the years were satisfactory and higher. Respondent was a school representative for the teachers' association for approximately 16 years. Respondent is a large man, 6 feet, 3 inches tall and weighs 300 pounds. On January 12, 1989, Respondent was teaching his regular sixth-period American History class. The bell had rung, signaling the beginning of the class period, but some students were still coming into the classroom. The Respondent was preparing to show the class a filmstrip. Peyton Dickson, a student in the class, walked from his seat in the rear of the classroom to the light switch at the front of the classroom and turned the light switch on and off several times. Respondent told him to stop and to sit down. He remained standing and "talked back" to Respondent. Dickson's conduct angered the Respondent who then walked to where Dickson was standing, grabbed him by the arms and shoved him up against the wall. Respondent called Dickson a "punk." Dickson then angrily returned to his seat. Shortly thereafter, during the same class period, Todd Ray, another student in the class, walked over to use the pencil sharpener. On the way back to his seat, he stopped to help another student with a bookcover. The Respondent grabbed Ray, walked him a short distance back to the student's desk and pushed him down into his seat. The class continued without further interruption. The Respondent did not contact the school office concerning the incidents at the time that they occurred. After class was over, several students, including Peyton Dickson and Todd Ray, approached the school principal, Beth Provancha, in the hall and told her about the actions of the Respondent. Later that same day, the principal, through Mr. Nelms, directed the Respondent to prepare a written account of what had occurred in the classroom. The Respondent submitted his written version of the facts the next day, January 13, 1989. (School Board Exhibit 14). On January 29, 1989, the Respondent received a letter relieving him of duty effective January 30, 1989, because of "serious" allegations of misconduct. In the case of a student who disrupts a classroom, School Board policy directs that a student should be verbally directed by the teacher to cease disruptions. If that does not resolve the situation, the office should be "buzzed" and an administrative person summoned to remove the disruptive student from the classroom. It is not permissible for a teacher to physically abuse a student except in the case of an emergency, and no emergency existed in Respondent's classroom on January 12, 1989. Respondent had been directed by the principal, personally, as well as in the Faculty Handbook, not to physically touch students, except for friendly gestures or in emergencies. At the time of the January 1989 incidents, the Respondent knew he had been directed not to "touch" students. In spite of this knowledge, the Respondent deliberately grabbed and shoved or "touched" the two students who had been disruptive in class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Orange County find Respondent guilty of misconduct in office, and not guilty of gross insubordination. It is FURTHER RECOMMENDED that Respondent be suspended, without pay, from the date of the incident January 12, 1989, until the end of the School Year 1988-89; and the Respondent receive counseling in stress management prior to returning to the classroom. DONE AND ENTERED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of February, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted: Paragraphs 1,2,3,4 (in part), 5,6,7,8,9,10,11,12,13,14 (in part). Rejected: Paragraph 13 and a portion of 14 - not relevant. Respondent's Proposed Findings of Fact: In view of the fact that Respondent's proposals are not numbered, they will be referred to by page and paragraph number as they appear in the proposed finding starting on page 3 thereof. Accepted in substance: second full paragraph on page 3 Rejected as argument: first full paragraph on page 3 third full paragraph on page 5 second full paragraph on page 6 Rejected as not supported by the evidence: third full paragraph on page 3 (continuing on page 4) first full paragraph on page 4 (except the phrase: ... "and was aware of the previous reprimands at the time the Respondent sought to control the two students' actions.) second full paragraph on page 5 Rejected as a conclusion of law which is ruled on in the Preliminary Statement or Conclusions of Law section of this Recommended Order: second full paragraph on page 4 first full paragraph on page 5 fourth full paragraph on page 5 first full paragraph on page 6 fifth full paragraph on page 5 (concluding on page 6) APPENDIX The following constitute rulings on the findings of fact proposed by the parties. Petitioner's Findings of Fact Adopted in paragraph 1. Adopted in paragraphs 10 and 12. Adopted in part in paragraph 9, although the identification of the Respondent at the party is discredited as improbable. Rejected as unsubstantiated by the weight of evidence. Even if the smell had been marijuana smoke, it was not established that the odor existed prior to Respondent's departure the evening of the 18th, or that he could identify the odor as marijuana. Rejected as contrary to the evidence. Adopted in paragraph 18. Adopted in substance in paragraph 15. Rejected as contrary to the weight of evidence. & J. Rejected. The testimony of these witnesses was essentially credible. Rejected as contrary to the weight of evidence. Rejected as contrary to the weight of evidence. Rejected as immaterial. The conduct was not proven. Respondent's Findings of Fact Respondent's 18 numbered Findings of Fact include multiple sub- parts containing findings mixed with argument and summary of evidence. The findings of fact are generally adopted and are incorporated herein. COPIES FURNISHED: Frank C. Kruppenbacher, Esquire William E. Curphey, Esquire Parker, Johnson, Owen, McGuire, Michaud, Lang and Kruppenbacher, P.A. Post Office Box 640 Orlando, Florida Michael Barber, Esquire Post Office Box 1928 Kissimmee, Florida James L. Schott Superintendent Orange County Public Schools Post Office Box 271 434 N. Tampa Avenue Orlando, FL 32802 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, FL 32399-0400
The Issue Whether the employment screening standards in Chapter 435, Florida Statutes, can, without more, serve as the basis for the Petitioner's terminating the Respondent's employment as a teacher. If so, whether Respondent's actions were sufficient to warrant termination of his employment.
Findings Of Fact Based on the stipulations of the parties and on the contents of Exhibits 1 through 4 attached to the Agreed Motion to Request Submission of Briefs in Lieu of Hearing, the following findings of fact are made: At all times material to these proceedings, Mr. Ano was employed by the School Board as a teacher, a position that he has held for approximately 21 years. The facts and events stated in the Palm Beach County Sheriff's Office Offense Report prepared April 5, 2002,3 led to the arrest of Raymond Ano and his wife, Toby Ano, late on the evening of March 28, 2002, and the early morning hours of March 29, 2002. An Amended Information was filed on September 18, 2002, with the Criminal Division of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, charging Raymond T. Ano with battery on a police officer, resisting an officer with violence, and defrauding an innkeeper. On October 31, 2002, Mr. Ano pled guilty to the offenses of battery (lesser), resisting an officer with violence, and defrauding an innkeeper. In an Order entered November 5, 2002, the court withheld adjudication of guilt and sentenced Mr. Ano to probation for 18 months for defrauding an innkeeper and for resisting an officer with violence and for 12 months for battery, with the sentences to run concurrently. Mr. Ano did not report his arrest and guilty plea to the School Board; however, this violation of School Board policy is not, of itself, sufficient to justify termination of his employment.4 On July 16, 2004, the School Board voted to suspend Mr. Ano without pay and to terminate his employment, based on Mr. Ano's plea of guilty to the charge of resisting an officer with violence. The School Board followed its procedural rules in investigating this matter and in voting to terminate Mr. Ano's employment. An Amended Petition for Suspension without Pay and Dismissal from Employment was issued July 30, 2003, in which the School Board alleged that there was just cause for Mr. Ano's suspension and termination based on his failure to report his arrest and his plea of guilty to an offense enumerated under Chapter 435, Florida Statutes, specifically, resisting arrest with violence, in violation of Section 843.01, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order: Finding that Mr. Ano's plea of guilty to a violation of Section 843.01(2)(gg), Florida Statutes, does not provide a legally-sufficient basis for terminating Mr. Ano's employment with the School Board of Broward County, Florida; Reinstating Mr. Ano's employment with the School Board of Broward County, Florida; and Paying Mr. Ano his back salary from the date of his suspension without pay. DONE AND ENTERED this 29th day of June, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2004.
The Issue The issue in this case is whether Petitioner has just cause to suspend Respondent for 15 days without pay and return her to an annual contract.
Findings Of Fact Ms. Gabriele has been employed by the School Board since October 13, 1997. As a member of the School Board's instructional staff, Ms. Gabriele's employment was subject to section 1012.33, which provides that her employment will not be suspended or terminated except for just cause. During the 2010-2011 school year, Ms. Gabriele was a teacher at Bashaw Elementary School (Bashaw). As a teacher, Ms. Gabriele was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures Manual of the School Board. On February 17, 2011, an Office of Professional Standards (OPS) file was opened regarding Ms. Gabriele based upon allegations that, on February 9, 2011, Ms. Gabriele asked a teacher's aide, Brenda Twinem (Ms. Twinem), in the presence of students, "Can I kill a kid today?", and, on February 16, 2011, Ms. Gabriele called a female student to the front of the classroom and yelled at her in the presence of other students and a parent. On April 18, 2011, another OPS file was opened regarding Ms. Gabriele based upon an allegation that she made intentional contact with a witness (Ms. Twinem) who was involved in a recent OPS investigation into the alleged misconduct of Ms. Gabriele. On April 19, 2011, the School Board notified Ms. Gabriele of its intent to place her on paid administrative leave pending the OPS investigation. On June 3, 2011, the superintendent notified Ms. Gabriele of his intent to recommend the suspension of her employment for 15 days without pay, the dates of which to be determined by her principal, and a return to annual contract status. The June 2011 AC notified Ms. Gabriele of the School Board's intent to suspend her employment and set forth the basis of the superintendent's recommendation for suspension. In the AC, the School Board charged that Ms. Gabriele had engaged in actions which constituted just cause under Section 6.11 of the Policies and Procedures Manual of the School Board. These actions included: immorality, misconduct in office, corporal punishment, excessive force, and violation of Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e). Joshua Bennett (Principal Bennett) became the principal of Bashaw in September 2010. Among his many other duties during the 2010-2011 school year, Principal Bennett was responsible for the supervision of the Bashaw teachers, including Ms. Gabriele, who was a fifth-grade teacher. Ms. Gabriele's class size fluctuated from 18 to 22 students during the 2010-2011 school year. It was noted that, during the math instruction period, there were changes in the number of students in her classroom, and it changed when Principal Bennett moved a student out of her class. Principal Bennett received some parent complaints and concerns regarding Ms. Gabriele shortly after he became Bashaw's principal. Based on these complaints, Principal Bennett collected information from the parents and decided to have an informal conversation with Ms. Gabriele. He also determined to walk through her classroom more frequently during the school year. Further, Principal Bennett recommended to Ms. Gabriele that she take some behavior management classes. Ms. Gabriele had the services of a paraprofessional (a/k/a a teacher's aide), Ms. Twinem, for a specific amount of time (40 to 50 minutes) during a particular day each week. While working for Ms. Gabriele as a paraprofessional, Ms. Twinem would check off homework, sort papers, grade papers, or work with groups of students as she was directed. In February 2011, Ms. Twinem approached Ms. Gabriele to provide her information. There were several students engaged in conversations in close proximity to Ms. Gabriele as she sat at her desk. According to Ms. Twinem, Ms. Twinem was standing beside Ms. Gabriele's desk when Ms. Gabriele looked at her and, in a frustrated tone, stated, "Can I kill a kid?" (Gabriele's Statement). Ms. Twinem was speechless because she thought it was inappropriate for Ms. Gabriele to make that statement in front of students. Ms. Twinem told Principal Bennett of Gabriele's Statement shortly thereafter. Ms. Twinem wrote her own account of Gabriele's Statement. Ms. Twinem's account contained her thought that Ms. Gabriele was joking, but she (Ms. Twinem) did not "know how it [Gabriele's Statement] was interpreted by the students." Clearly, at that time, Ms. Twinem had concerns about what the students thought of Gabriele's Statement. Ms. Gabriele admitted to making Gabriele's Statement. At hearing, she testified that, at the time she made the statement, the students were working with their partners, and it was loud in the classroom. After a student had asked her the same question several times, Ms. Gabriele made Gabriele's Statement. Although Ms. Gabriele testified that she was not frustrated, mad or upset when she made the statement, that she just made the statement "off-the-cuff kind of thing," this is not credible. According to Ms. Gabriele, the student's question involved a long-standing classroom practice of the students placing their completed assignments in a pink bin. If the student was indeed asking or questioning this long-standing practice, it would be natural for some type of frustration or exasperation to be expected. Ms. Gabriele conceded that, even if Gabriele's Statement had been made in jest or in a joking manner, it was inappropriate. Also in February 2011, Principal Bennett had a specific complaint involving a parent's (E.B.) observation during a visit to Ms. Gabriele's classroom. With Ms. Gabriele's knowledge that she was in the classroom, E.B. had come to pick up her student and to search for some misplaced homework in the classroom. E.B. observed a female student (later identified by the initials N.A.) go to the front of the classroom where Ms. Gabriele was yelling at her. E.B. described Ms. Gabriele's actions as ". . . really reaming the kid, . . . And she just didn't seem like she was letting up, and the child was just very distraught." E.B. observed N.A. to be "really teary eyed . . . Not in a full cry, but looked like she would break down." E.B. thought Ms. Gabriele's behavior was "pretty harsh," loud in a real demanding way, and fierce. E.B testified that, had Ms. Gabriele been yelling at E.B.'s student, she "probably would have yanked her in the hall and had a few words." E.B. was appalled at Ms. Gabriele's behavior and reported her observation to Principal Bennett. As a result of her conversation with Principal Bennett, E.B. followed up with a letter to the principal detailing what she had witnessed in Ms. Gabriele's classroom, as well as other observations she had while chaperoning a school field trip with Ms. Gabriele's class. E.B. requested to be kept informed of what action was being taken and volunteered to be in the classroom when her scheduled permitted. Shortly thereafter, an OPS investigation was opened regarding Ms. Gabriele. Debra Horne (Ms. Horne) is a specialist in the OPS. Ms. Horne conducted an investigation of E.B.'s classroom observation and Gabriele's Statement by interviewing Ms. Twinem; 11 students from Ms. Gabriele's class, including N.A.; and Ms. Gabriele. Ms. Twinem and the students' statements were taken on February 18, 2011, making them almost contemporaneous with the events. During the OPS interviews with the 11 students, all 11 stated that Ms. Gabriele yells at the students, and one student said her yelling was "extreme." Five of the students stated Ms. Gabriele embarrassed them or other students by her actions; four stated Ms. Gabriele called students different names, such as "toads," "toadettes," "hillbilly," or "baby"; and three said she made them cry or other students cry. During her OPS interview, N.A. stated that Ms. Gabriele had made her cry and that it embarrassed her a lot. N.A. further stated that Ms. Gabriele yelled at her and other students a lot.2/ During Ms. Twinem's OPS interview regarding Gabriele's Statement, she described Ms. Gabriele as being frustrated and using a frustrated tone when it was spoken. At the hearing Ms. Twinem also testified that she thought Gabriele's Statement was made "out of frustration," but that it was "inappropriate" nonetheless. Ms. Gabriele's OPS interview occurred on March 17, 2011. Ms. Horne conducted the OPS interview and followed her standard procedures in telling Ms. Gabriele the substance of the investigation. Aside from being told what her rights and duties were regarding the investigation, Ms. Gabriele was also reminded of the School Board policy regarding her cooperation with the investigation and her responsibility to not interfere with it or communicate with any witnesses to the investigation. Ms. Gabriele's interview included questions about E.B.'s letter, including E.B.'s classroom observations, and Gabriele's Statement. Ms. Gabriele confirmed she was aware that E.B.'s letter was sent "downtown." Ms. Gabriele maintained that she thought the only issue in the initial investigation was E.B.'s letter. This position is thwarted when one reviews her OPS interview wherein Ms. Gabriele was questioned about both E.B.'s letter and Gabriele's Statement. Although during the OPS interview Ms. Gabriele stated she did not remember the incident with N.A. crying, she did admit that if E.B.'s recollection of the incident with N.A. was correct that she, Ms. Gabriele, could "have handled it differently" by calling the student off to the side to discuss the issue. Also, during the OPS interview, Ms. Gabriele admitted that Gabriele's Statement was inappropriate when made to a coworker in the presence of students. Ms. Gabriele received a copy of the School Board's initial OPS investigative report in April 2011. Within that report, and through Ms. Gabriele's testimony, she acknowledged receipt of that investigative file,3/ which included all the information obtained during the initial OPS investigation, including her own interview regarding E.B.'s letter and Gabriele's Statement. In Section III of the initial OPS investigative report (for E.B.'s letter and Gabriele's Statement) and through her hearing testimony, Ms. Horne detailed her standard routine with respect to the description given to each witness at the start of his/her interview. Further, Ms. Horne advised School Board employees of their obligation to cooperate with the investigation as well as the School Board's Policy 6.13.4/ Ms. Gabriele testified that she was aware of the policies. On Monday morning, April 18, 2011, when Ms. Twinem reported to Ms. Gabriele's classroom to sort papers and check homework, she was subjected to questions by Ms. Gabriele regarding whether or not Ms. Twinem had, in fact, reported Gabriele's Statement to Principal Bennett. Ms. Gabriele testified she found out that Ms. Twinem was upset or bothered by Gabriele's Statement during one of her meetings with Principal Bennett. However, neither her testimony nor Principal Bennett's testimony reflected upon any meeting between those two on that Monday morning or the week prior for Ms. Gabriele to make that connection. Further, as Ms. Gabriele testified, she "obviously" knew that Ms. Twinem was the person who reported Gabriele's Statement, as she was the only other adult in the classroom at the time it was uttered. Ms. Twinem testified that she felt like "a deer in the headlights" when Ms. Gabriele asked her about reporting Gabriele's Statement. Ms. Twinem admitted to Ms. Gabriele that she had reported Gabriele's Statement to the principal "a long time ago." Ms. Twinem testified she was "anxious and nervous and like just didn't feel good" when Ms. Gabriele confronted her. Ms. Twinem reported this first encounter to Principal Bennett because she thought it should not have occurred. Later that same morning, Ms. Gabriele came into Ms. Twinem's office and told Ms. Twinem that she shouldn't tell anyone about their prior conversation because Ms. Gabriele could get in trouble. Ms. Twinem reported this second encounter to Principal Bennett. Still, later that same day when Ms. Twinem was in her office, Ms. Gabriele stood at the door and said that Ms. Twinem had gotten her (Ms. Gabriele) in trouble, because she had reported the second contact to the principal. Ms. Twinem reported this third contact to Principal Bennett. Principal Bennett testified that, after Ms. Twinem reported the first contact by Ms. Gabriele, he conferred with the OPS personnel as to what he should do. Based on direction from OPS, Principal Bennett hastily attempted to arrange a meeting with Ms. Gabriele to give her a verbal directive about contacting any witnesses involved with the investigation. Before the meeting could occur, Ms. Twinem reported that Ms. Gabriele had contacted her again. Prior to the third encounter, Principal Bennett issued a verbal directive to Ms. Gabriele about contacting any witnesses involved in the investigation. His directive included an admonishment "to cease and desist talking to the other employees about the OPS matter." Principal Bennett recounted that he told Ms. Gabriele that she was "not to talk to any other employees about the open investigation." Ms. Gabriele admitted she spoke with Ms. Twinem three times on April 18, 2011. Ms. Gabriele claimed that she did not understand who she could or could not talk to with respect to the investigation and that she only wanted to apologize for making Ms. Twinem upset about Gabriele's Statement. Ms. Gabriele admitted she knew it was Ms. Twinem who reported Gabriele's Statement to the principal. In the event Ms. Gabriele had questions about who she could or could not talk to, she had the opportunity to ask either Principal Bennett or Ms. Horne. Such dialogue apparently did not occur.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Manatee County School Board enter a final order suspending Ms. Gabriele for 15 days without pay and returning her to an annual contract. DONE AND ENTERED this 8th day of December, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2011.
