The Issue Whether Petitioner's application for licensure as a psychologist should be approved, pursuant to Chapter 490, Florida Statutes. This proceeding arose as a result of Respondent's provisional denial of Petitioner's application for licensure by endorsement as a psychologist under Chapter 490, Florida Statutes, and Chapter 21U-11, Florida Administrative Code, based upon Respondent's determination that Petitioner did not hold a license in another state which was obtained by requirements substantially equivalent or more stringent to requirements for licensure as a psychologist in the State of Florida. At the commencement of the hearing, Petitioner was advised of his rights in administrative proceedings. He indicated his understanding of such rights and elected to represent himself at the hearing. Petitioner testified in his own behalf and submitted 4 exhibits in evidence. Respondent presented the testimony of Dr. Frank Biasco, a member of the Board of Psychological Examiners. Joint Exhibit 1 representing the application file of Petitioner was also received in evidence.
Findings Of Fact Petitioner Henry S. Tugender, Morganville, New Jersey, filed an application for licensure by endorsement as a psychologist with Respondent Board of Psychological Examiners on February 22, 1982. By letter of November 4, 1982, the Board's executive director informed Petitioner that his application had been denied by the Board pursuant to Rule 21U-11.04, Florida Administrative Code, because he did not hold a license in another state obtained by requirements substantially equivalent or more stringent to requirements for licensure as a psychologist in the State of Florida. Petitioner thereafter requested an administrative hearing. (Testimony of Tugender, Joint Exhibit 1) Petitioner received a master's degree in clinical psychology from Long Island University in 1959. He pursued doctoral studies in the clinical psychology program of Arizona State University from 1962 to 1964. In 1970, he obtained a Doctor of Philosophy degree from East Coast University, Dade City Florida, with a major in psychology. He was in an "external" degree program that involved a minimum residency during two summers and and submission of a dissertation. The university was not accredited by the American Psychology Association (APA) and is no longer in existence. (Testimony of Tugender, Joint Exhibit 1, Petitioner's Exhibit 1) Petitioner is licensed to practice psychology in three states and the District of Columbia. He was licensed in New Jersey in 1968, Illinois in 1971, Pennsylvania in 1975, and the District of Columbia in 1973. At the time of licensure, none of the three states or the District of Columbia required a doctoral degree to obtain a license. He qualified in each instance by having a master's degree, plus a varying number of years of experience. (Testimony of Petitioner, Joint Exhibit 1) At the time Petitioner was licensed in New Jersey, Pennsylvania, Illinois and the District of Columbia, the licensure requirements of those states were not substantially equivalent to or more stringent than those now contained in Chapter 490, Florida Statutes, in that they did not require a doctoral degree with a major in psychology from a school with an APA approved program, or from a school maintaining a standard of training comparable to those universities having programs approved by the APA or the doctoral psychology programs of the state universities. Rifle 21U-11.04(2)(a), Florida Administrative Code, sets forth criteria that must be met in all respects in order to demonstrate that the doctoral program meets the comparability requirements established by the rule. Petitioner presented no evidence concerning the content of his doctoral program at East Coast University, but conceded at the hearing that the program did not meet a number of the requirements specified in the rule. (Testimony of Petitioner, Biasco) Petitioner seeks to relocate to Florida for professional and health reasons. He currently is in private practice in New Jersey. He specializes in hypnosis and has been active in that field over many years. At the time of hearing, he held a valid Florida Department of Education teacher's certificate in psychology. He is also a certified school psychologist in the states of Pennsylvania and New Jersey. He is affiliated with a number of professional organizations and is listed in the National Register of Health Service Providers in Psychology. In 1974-75, he served as a consultant to the Florida Parole and Probation Commission, and in the Department of Corrections. (Testimony of Petitioner, Joint Exhibit 1, Petitioner's Exhibits 1-4)
Recommendation That Petitioner's application for licensure as a psychologist by endorsement be DENIED. DONE and ENTERED this 14th day of July, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 14th day of July, 1983. COPIES FURNISHED: Jane Raker, Executive Director Board of Psychological Examiners 130 North Monroe Street Tallahassee, Florida 32301 Randy Holland, Esquire Department of Legal Affairs The Capitol - 1601 Tallahassee, Florida 32301 Henry S. Tugender 35 Wickatunk Village Morganville, N.J. 07751
The Issue Whether respondent committed the acts alleged in paragraphs 3-7 of the Administrative Complaint and, if so, whether such acts constitute violations of Subsections 231.28(1)(c) and (f), Florida Statutes, and Rule 6B-1.06(3)(a), Florida Administrative Code.
Findings Of Fact The respondent holds Florida Teaching Certificate No. 259659 covering the areas of biology and science. At all times pertinent hereto, the respondent was employed as a science teacher at Franklin Junior High School in the Hillsborough County School District. In September, 1986, the Tampa Police Department received information from the principal of Franklin Junior High School and the resource officer that two teachers at the school might be involved in the use of cocaine or some other type of drug. Detective Cindy Stanbro was assigned to investigate the allegation. Detective Stanbro worked in an undercover capacity as a student intern teacher at Franklin Junior High School. Detective Stanbro was placed in the classroom of science teacher Keith Layton, who was aware of her true identity. Detective Stanbro initially reported to Franklin Junior High School on Friday, September 19, 1986. On the Friday that she reported to Franklin Junior High School, she was able to meet the respondent and Michael Behl, the two individuals who were the subjects of the investigation. Before the end of the school day, Detective Stanbro invited the respondent to go out for drinks with a group of teachers. The respondent was unable to go, but he told Detective Stanbro he would take a rain check. On the following Monday, September 22, 1986, at about 1:20 p.m., Detective Stanbro went to respondent's classroom and asked him if he'd like to go to Casa Gallardo to have a drink after school. Respondent stated that he had come to work with somebody else, so he would need a ride home. Detective Stanbro told him that she could take him home, and respondent accepted her invitation. Detective Stanbro and the respondent left the school at about 4:30 p.m. in Detective Stanbro's automobile. After stopping at a music store so that respondent could pick up some cassette tapes, respondent and Detective Stanbro went to Casa Gallardo, arriving at about 4:50 p.m. No one else joined them at the restaurant; however, backup surveillance units were at the restaurant observing Detective Stanbro and respondent. After ordering drinks and engaging in general conversation about the school and why Detective Stanbro wanted to be a teacher, Detective Stanbro brought up the subject of drugs. She asked respondent if he liked to "get high." Respondent said that he did. He said that he liked to smoke marijuana and snort cocaine. Respondent told Detective Stanbro that he had erected a partition in the back of his classroom which allowed him to look out and see his class but did not allow them to observe him. Respondent stated that he had put the partition up so that he could snort cocaine in the back of the room without the students seeing him. Respondent said that he used cocaine during fifth or sixth period because he would be mentally exhausted by the end of the day and he needed something as a "pickup." He stated he used cocaine because he didn't have a coffee maker in his classroom. During the conversation the respondent and Detective Stanbro also discussed prices paid for cocaine. Respondent told Detective Stanbro that he paid $50 for a half gram of cocaine. Detective Stanbro, who acted as if she used cocaine all the time, stated that the price was too high and told respondent that she knew a Colombian dealer from whom she could buy cocaine for $60 a gram. Respondent told Detective Stanbro that when his coke ran out, he would get Detective Stanbro to buy cocaine for him. Detective Stanbro and respondent were not together at the restaurant the entire time, since respondent went to the restroom at some point during the evening. Sergeant Cuesta, who was part of the surveillance unit, happened to be in the restroom when respondent entered. Sergeant Cuesta left the restroom before respondent. Detective Stanbro and the respondent left the restaurant at approximately 6:45 p.m. As they were getting ready to leave the restaurant parking lot, Detective Stanbro asked respondent if he had any cocaine on him. The respondent indicated that he did and produced a small smoke-colored glass vial. Respondent wanted her to snort some then, but Detective Stanbro said she couldn't because she had to go to dance class and she didn't want to be high on cocaine while dancing. She asked him if he would give her some so that she could have it later. She gave him a dollar bill, and he put some of the substance from the vial on the dollar bill. Detective Stanbro folded the bill and kept it. There was approximately a half a gram of cocaine left in the vial. Respondent placed the glass vial back into his pocket. Detective Stanbro took respondent home, then went back to the office and did a Vol-Tox test on the substance provided by respondent. The substance tested positive for the presence of cocaine. Detective Stanbro then placed the dollar bill containing the cocaine into the property room for safekeeping. The evidence was later chemically analyzed by use of ultraviolet spectrophotometry and gas chromatography mass spectrometry tests; which established conclusively that the substance contained cocaine. Detective Stanbro saw respondent the following day at school, September 23, 1986, at approximately 10:20 in the morning. Detective Stanbro was in a little conference room in the back of Mr. Layton's biology class, and respondent came in to see her. Respondent handed Detective Stanbro $60 and stated that he needed to buy a gram of cocaine. Detective Stanbro told him that she would introduce him to the person who was selling the cocaine. However, Detective Stanbro kept the $60. Respondent then left the room. The next contact Detective Stanbro had with respondent was on September 25, 1986, at about 1:45 p.m. Detective Stanbro went to see respondent in his classroom. Respondent was showing a film and the classroom was very dark. Detective Stanbro went to the back of the classroom to talk to respondent. Respondent was at his desk behind the partition. Detective Stanbro asked respondent if he had any cocaine on him, and respondent said that he had a little bit. Respondent stated that she could have a "snoot" if she wanted. Respondent took the glass vial out of his pocket. It was the same vial that he had at the restaurant; however, there was only a small amount of cocaine left in the vial. Detective Stanbro told respondent that she was afraid to snort any cocaine in the classroom because of the children being present, but respondent stated that it was easy and demonstrated by placing the vial, which had a flared screw-in top, up to his nostril and inhaling. Detective Stanbro then took the vial and attempted to put some of the substance in the vial on a Kleenex so that it could be saved for evidence, but there was not enough cocaine in the vial for her to get a sample without scraping the sides, which she thought would look suspicious. During the course of conversation with Detective Stanbro at the back of the classroom, respondent mentioned the $60 he had given her on Tuesday and asked about the gram of cocaine he was supposed to receive. He stated that it was a great deal and that he had never purchased cocaine so cheaply before. He added that the best price he had ever gotten before was $75 a gram. Detective Stanbro told him that they would get the gram of cocaine the next day around lunch time. She left respondent's class at about 2:40 p.m. The next day, Friday, September 26, 1986, at about 10:20 a.m., respondent went to Mr. Layton's classroom to see Detective Stanbro. Respondent acted differently than he had before. He stated that he had just received a $300 electric bill and that he wouldn't be able to buy the cocaine. He wanted the $60 back. He stated that he was being too blatant about his use of cocaine at the school and told Detective Stanbro that he had decided to "cool it" for a while. He also asked Detective Stanbro very specific questions about her college background, including the classes and teachers that she had. Detective Stanbro felt that respondent was acting very suspiciously and concluded that respondent suspected her of being an undercover police officer. After respondent left the classroom at about 10:45 a.m., respondent called Sergeant Cuesta and advised him of the situation. Detective Stanbro went back to the vice office and a decision was made to prepare a warrant for respondent's arrest. At 2:45 p.m. Detective Stanbro returned to the school and placed respondent under arrest for possession and delivery of cocaine of less than a gram in weight. Respondent's arrest occurred during the school day while students were present on campus. The time and place of arrest was the decision of the Vice Control Bureau. Shortly after his arrest, at about 4:15 p.m., Sergeant Cuesta interviewed the respondent after respondent was advised of his Miranda rights and signed a "Consent to be Interviewed" form. Respondent admitted telling Detective Stanbro that he got high on cocaine, but stated that he told her he did not enjoy smoking marijuana. He admitted having cocaine with him and providing some of the cocaine to Detective Stanbro. He admitted to Sergeant Cuesta that he used cocaine at school. He said that working with children was emotionally draining and that he would get very tired at the end of the school day. He stated that because there wasn't a coffee maker in his classroom, he snorted cocaine. Respondent emphasized that he did not use cocaine in front of his students and stated that one of the reasons he put up a screen in front of his desk was to hide his cocaine use from the students. Respondent stated that he bought about a gram of cocaine at a time and it would last him about six months. Respondent became very emotional and stated that he was ashamed of himself for the embarrassment he had caused to his colleagues and to his family. He said he had a drug problem. Respondent's testimony at the hearing was not credible and is rejected. Respondent testified that when he went to the restroom at the Casa Gallardo, there was a stranger in the restroom who offered respondent the vial with the substance in it. The stranger said "Your girlfriend seems to be really into doing things. Why don't you give her some of this?" Respondent stated that the stranger wanted him to buy the substance, but when respondent said no, the stranger just gave him the vial with the substance in it. Respondent testified that he didn't know what was in the vial. However, he also testified that he gave the entire contents of the vial to Detective Stanbro the night they went to the restaurant when she asked for cocaine. It is not only beyond belief that a stranger would approach the respondent in a public restroom and simply give him what turned out to be an expensive contraband drug, it is also beyond belief that the respondent would then give the entire contents of the vial to Detective Stanbro, fully believing that she would later consume the substance, when he had no idea what the substance was. About four months after his arrest, respondent went to see Dr. M. K. El-Yousef, a psychiatrist, for the purpose of establishing that he was not a drug abuser. Respondent was given five tests by a substance abuse counselor and had a one hour interview with Dr. El-Yousef. The only information provided to Dr. El-Yousef was provided by the respondent. Based on the results of the five tests and his interview with the respondent, Dr. El-Yousef opined that respondent "is not a substance abuser" and is a "relatively naive adult who means well as a teacher who got set up and fell as he described." (e.s.) Obviously, Dr. El-Yousef believed that respondent was being truthful in describing the events leading up to his arrest. However, the events respondent related to Dr. El-Yousef simply did not occur. Respondent told Dr. El-Yousef that he met a girl at a bar who had approached him and asked him if he wanted to get high; that he "played it cool and said sure"; that he then bought some cocaine from an individual that the girl pointed out to him; and that when the girl and he left to go to his apartment to use the cocaine, the police picked him up outside the bar. Since respondent was not entirely truthful with Dr. El- Yousef, the validity of Dr. El-Yousef's opinion concerning respondent's drug use or abuse is questionable. His opinion that respondent "got set up and fell as he described" is clearly erroneous. From all the evidence presented, it is apparent that respondent's effectiveness as an employee of the school board has been seriously reduced. The respondent's arrest and subsequent trial and sentencing received a good deal of coverage in the local news media. However, it is not only the amount of coverage that respondent's activities received that has reduced his effectiveness as a teacher, it is respondent's own conduct that has seriously reduced his effectiveness as a teacher. By his conduct, respondent has established that he has extremely poor judgment and a total lack of awareness of the responsibilities of a teacher. Student drug possession is considered a serious matter by the Hillsborough County Schools. If a student at Franklin Junior High is caught with drugs in his possession, he is turned over the police for arrest. Approximately 70 percent of the school resource officer's teaching time is devoted to discouraging drug usage among students. Teachers set an example for their students; they serve as role models. By his conduct, respondent showed that he had little concern about the effect his drug use might have on his students. In his proposed findings of fact, respondent suggests that Detective Stanbro "did entice" the respondent to a bar where the respondent "went along with the prompting of the undercover officer . . ." From the evidence presented, it is apparent that respondent has convinced himself that he was simply an innocent victim "set up" by an attractive woman who used the bait of romance to lure him into talking about drug use. However, respondent's rationalization of the events in question simply does not coincide with the facts, and his perception of this matter only emphasizes respondent's lack of awareness of the responsibilities of his profession. Respondent has completely overlooked the fact that throughout this episode he believed that Detective Stanbro was an intern, a college student placed in the school system to learn by experience and by example how to be a teacher. Had respondent possessed the slightest sense of responsibility to the educational process or his school system, he would not have condoned or encouraged an intern's use of drugs, regardless of the amount of "prompting" he received or his own desire for a romantic relationship. The respondent, however, not only indicated to this "intern" that the use of drugs by a teacher was acceptable, he explained how a teacher could use cocaine in the classroom without getting caught by the students and then demonstrated how easy it was by snorting cocaine in front of the intern during one of his classes. This is clearly not the behavior of an educator who has any concern for his profession. Respondent is currently on court-ordered probation for a period of 15 years. One of the conditions of his probation is that he submit to periodic drug testing. The drug abuse screens reported to the Department of Corrections on August 14, September 10, September 25, October 8, November 10, November 20, and December 8, 1987, did not reveal the presence of cocaine or any other drug. The evidence presented did not indicate that respondent was ever a "heavy" drug user. Detective Stanbro testified that her impression was that respondent was a "casual" user. Further, respondent presented the testimony of a great number of his fellow teachers and other school staff, all of whom testified that respondent had never appeared to be disoriented or intoxicated.
Recommendation Based on the foregoing findings of fact and conclusions of law, and pursuant to Section 231.262(5), Florida Statutes, it is RECOMMENDED that a final order be entered revoking respondent's teaching certificate. DONE AND ORDERED this 27th day of April, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1988. APPENDIX Petitioner's Proposed Findings of Fact: 1-11. Accepted. 12. Accepted generally as stated in paragraph 12 of the Recommended Order. 13-17. Accepted generally. 18-20. Accepted. 21. Accepted though not as stated. 22-23. Rejected as unnecessary and because of lack of competent evidence regarding the school board's action. Rejected because it is not a finding of fact; further, although the drug screen tests are not relevant to the allegations of the complaint, they may be considered as relevant in considering the penalty. Rejected as not a finding of fact. Rejected as a finding of fact; however, report submitted not relied upon for any factual findings. Accepted that Dr. El-Yousef's opinion is questionable for reasons stated in paragraph 1. Rejected as irrelevant. 29-30. Accepted generally in that despondent was not considered a credible witness. 31. Accepted generally. 32-33. Accepted to the degree it relates findings of fact. Respondent's Proposed Findings of Fact: Respondent's only finding of fact, on page five of his proposed order, is rejected for the reasons stated in the Recommended Order. The evidence does not support a finding that Detective Stanbro "did entice" respondent to a bar. There was no evidence that respondent "went along with the prompting" of Det. Stanbro. Merely asking respondent if he liked to get high is hardly prompting. Respondent admitted to both Det. Stanbro and Sgt. Cuesta that he used cocaine in the classroom and Det. Stanbro observed him doing so. Respondent's admissions and his actions can hardly be classified as "only joking." COPIES FURNISHED: J. David Holder, Esquire RIGSBY & HOLDER 325 John Knox Rd., Suite C-135 Tallahassee, Florida 32303 W. Dale Gabbard, Esquire 412 East Madison Street Suite 901 Tampa, Florida 33602 Karen Barr Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399 Martin B. Schapp Administrator Professional Practices Services 319 West Madison Street Room 3 Tallahassee, Florida 32399
The Issue The issue in this case is whether Respondent, Harriett S. Parets, committed the offenses alleged in an Administrative Complaint issued by Petitioner, and dated July 27, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact 1. Petitioner filed his Administrative Complaint on July 27, 2004, alleging certain material allegations and Statutory and Rule violations and seeking an appropriate penalty pursuant to the authority provided to the Education Practices Commission in Sections 1012.795(1) and 1012.796(7), Florida Statutes. Respondent filed her Election of Rights and requested a formal hearing on August 23, 2004. The parties’ previous attempt at resolving this matter met without success, and a formal hearing was requested which was scheduled for March 1 and 2, 2006. 2. At all times material to the allegations of this case, Respondent, Harriett Parets, was employed as an elementary school teacher in the Broward County School District. 3. Respondent holds Florida Educator’s Certificate Number 592721. Her certificate covers the areas of elementary education and English for Speakers of Other Languages. It is valid through June 30, 2008. 4. Prior to the incidents complained of in this cause, Respondent taught in the Broward County School District without discipline for six years. Respondent was in her seventh year with the system when the allegations of this case arose. 5. Respondent had no prior disciplinary concerns. 6. Respondent had received satisfactory evaluations every year. 7. Respondent had administered the Florida Comprehensive Assessment Test (FCAT) on five prior occasions without incident. 8. During the 2002 school year Respondent was assigned to teach fourth grade at McNab Elementary School (McNab). Her class was scheduled to take the FCAT on March 11 through 13, 2003. 9. Prior to the dates of testing, teachers at McNab were instructed to view a resource video. The video instructed and directed the teachers in the administration of the FCAT. It included information not previously addressed by the video. 10. Additionally, teachers at McNab were provided testing procedures to guide the administration of the FCAT. Teachers were to follow specifically worded texts in the directions provided to their students. A verbatim reading of the text was required by the FCAT testing protocols. Additional comments outside the text were prohibited. 11. Teachers at McNab were advised on the importance of the FCAT results, the requirement of adhering to the testing protocols, and the opportunities available to the school should McNab students perform well on the FCAT. 12. In fact, as McNab had received an “A” rating in the past (following good FCAT results), the school had received special funding tied to that performance. 13. In connection with the FCAT testing at issue herein, McNab administrators took precautions to provide test administrators with the schedule of the exam dates, the materials needed to administer the test, and training in the proper administration of the FCAT. Testing protocols were reviewed. 14. Proctors also received training regarding the administration of the exam. Each class was assigned a proctor along with the teacher who was primarily responsible for the test administration. 15. In this case, the proctor and several students verified comments from Respondent that deviated from the scripted instructions. 16. Contrary to the scripted instructions Respondent looked at the students’ test booklets, told more than one student to re-examine their work for errors, and pointed out a wrong answer. Respondent announced to the class as a whole that she was “seeing a lot of wrong answers.” 17. The Respondent was not authorized to make comments during the administration of the test. More important, the Respondent was not permitted to assist by any means the students who were taking the FCAT. 18. Respondent admitted that she did not watch the FCAT training video (known in this record as the BECON video). Respondent knew or should have known that she had been directed to watch the video. 19. Respondent admitted that she made comments to students that were beyond the scripted instructions provided in the teacher’s testing manual. 20. The issues of Respondent’s comments to the class and the level of assistance she had provided to students came to light when a student told her mother of Respondent’s conduct. The mother then contacted a school administrator to make the alleged improprieties known. 21. After determining that Respondent had assisted students in her class, administrators invalidated the test results from Respondent’s class. 22. As a result of the invalidation, the school did not have a sufficient number of test results to qualify as an “A” performing school under the state guidelines. Had the results from Respondent’s class been included, the school might have qualified and received recognition as it had in the past. 23. Following a formal hearing on the identical facts, the school district suspended Respondent for thirty (30) days. 24. Respondent has proctored the FCAT every year since the incident, including this year, without problem. 25. The District found that a 30-day suspension plus training was sufficient discipline.
Conclusions Stipulated Conclusions. 26. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. 27. Petitioner bears the burden of proof in this case to establish the allegations in the Administrative Complaint by clear and convincing evidence. Petitioner has met that burden. 28. Section 228.301, Florida Statutes, governs FCAT security and prohibits anyone from coaching students or assisting them in any manner in the administration of the exam. 29. Additionally, Florida Administrative Code Rule 6A- 10.042 prohibits interfering “in any way” with persons who are taking the FCAT in order to assist their performance. Clearly, Respondent inappropriately assisted students in her classroom. Had she watched the BECON video or more closely read the FCAT manual, she would have known that the comments and actions she made were inappropriate. The importance of test security was well known to all teachers. 30. By deciding to only suspend Respondent (as opposed to dismissal), Petitioner has recognized her past contribution to the school district. That Respondent blames others for her violation of testing protocols is regrettable. Petitioner has established that Respondent violated testing protocols and should be disciplined. 31. Respondent has violated the statutory rule violations alleged in Counts 1 through 4 of the Administrative Complaint. Other Conclusions. 32. Section 1012.795(1), Florida Statutes, gives the Education Practices Commission (hereinafter referred to as the “EPC”) the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, if he or she is guilty of certain acts specified in the statute. 33. The Commissioner has alleged in Count 1 of the Administrative Complaint that Respondent violated Section 1012.795(1)(c), Florida Statutes; in Count 2, that Respondent violated Section 1012.795(10(f), Florida Statutes; and in Count 3, that Respondent violated Section 1012.795(1)(i), Florida Statutes. 34. Section 1012.795(1)(c), Florida Statutes, provides that a teacher may be disciplined if he or she "[h]as been guilty of gross immorality or an act involving moral turpitude." 35. Section 1012.795(1)(f), Florida Statutes, provides that a teacher may be disciplined if he or she “has been found guilty of personal conduct which seriously reduces that person’s effectiveness as an employee of the district school board.” 36. Section 1012.795(1)(i), Florida Statutes, provides that a teacher may be disciplined if he or she “[h]as violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.” The Principles of Professional Conduct for the Education Profession in Florida (hereinafter referred to as the "Principles") are set out in Florida Administrative Code Chapter 6B-1.006. Having failed to reference any particular part of the Principles, it is assumed that the allegations of Count 4 are intended to refer to the actual portion of the Principles Respondent violated. Count 4 charges that Respondent violated Florida Administrative Code Rule 6B-1.006(3)(a), which requires that teachers “make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.” 37. Given the parties’ stipulation that “Respondent has violated the statutory rule violations alleged in Counts 1 through 4 of the Administrative Complaint,” the only issue which remains to be decided in this case is the appropriate penalty. In recommending a penalty, however, the extent to which the facts stipulated to by the parties actually supports their stipulation as to the statutory and rule violations must be considered. In particular, the Commission should take into account that the facts actually do not support the conclusion that Respondent violated Section 1012.795(1)(c), Florida Statutes, the basis for the alleged violation in Count 1. 38. The terms "gross immorality" and "an act involving moral turpitude" are not defined in Chapter 1012, Florida Statutes. See Sherburne v. School Board of Suwannee County, 455 So. 2d 1057 (Fla. 1st DCA 1984). Florida Administrative Code Rule 6B-4.009, which applies to dismissal actions initiated by school boards against instructional personnel, does, however, provide guidance as to the meaning of the terms as they are used in Section 1012.795, Florida Statutes. See Castor v. Lawless, 1992 WL 880829 *10 (EPC Final Order 1992). 39. Florida Administrative Code Rule 6B-4.009(2) defines "immorality" as follows: Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community. 40. "Gross immorality" has been defined by the courts as misconduct that is more egregious than mere "immorality": The term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practices Commission v. Knox, 3 FALR 1373-A (Department of Education 1981). Frank T. Brogan v. Eston Mansfield, DOAH Case No. 96-0286 (EPC Final Order 1996). 41. Florida Administrative Code Rule 6B-4.009(6) defines "moral turpitude" as follows: Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude. 42. The court in State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933), observed that moral turpitude: involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. 43. In determining whether any teacher is guilty of gross immorality or an act involving moral turpitude in violation of Section 1012.795(1)(c), Florida Statutes, it must be remembered that "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Professional Practices Council, 406 So. 2d 1170, 1171 (Fla. 1st DCA 1981). 44. The acts committed by Respondent in this case were not sufficiently egregious to constitute gross immorality or acts involving moral turpitude. Respondent’s conduct, while inconsistent with the conduct expected of a teacher administering the FCAT, does not constitute an act ". . . which constitutes a flagrant disregard of proper moral standards" or an act of "inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society." 45. As for the violation of Section 1012.795(1)(f), Florida Statutes, while the parties have stipulated that Respondent's conduct reduced her effectiveness as an employee of the School Board, the facts show that the School Board has considered Respondent's effectiveness as an employee adequate to continue her in its employment and to continue allowing her to administer the FCAT. 46. While clearly inappropriate conduct on the part of the Respondent, her conduct barely constitutes a violation of the other statutory violation alleged in Count 3. Recommended Penalty. 47. Section 1012.795(1), Florida Statutes, gives the EPC the following disciplinary authority: The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, . . . provided it can be shown that the person [violated one of the subsections that follow]. 48. In its Proposed Recommended Order for Appropriate Penalty, Petitioner has requested that it be recommended that Respondent’s certificate be permanently revoked and that she be permanently barred from re-application. Respondent has requested that it be recommended that Respondent’s 30-day suspension by the Broward County School Board (hereinafter referred to as the “School Board”) serve as her penalty in this case. In the alternative, Respondent has suggested that a one- year period of probation be added to the already served suspension. 49. In deciding the appropriate penalty to recommend in this case, consideration has been given to Florida Administrative Code Rule 6B-11.007(3), which provides aggravating and mitigating circumstances to be considered in determining the appropriate penalty in a case such as this: (3) Based upon consideration of aggravating and mitigating factors present in an individual case, the Commission may deviate from the penalties recommended in subsection (2). The Commission may consider the following as aggravating or mitigating factors: The severity of the offense; The danger to the public; The number of repetitions of offenses; The length of time since the violation; The number of times the educator has been previously disciplined by the Commission. The length of time the educator has practiced and the contribution as an educator; The actual damage, physical or otherwise, caused by the violation; The deterrent effect of the penalty imposed; The effect of the penalty upon the educator’s livelihood; Any effort of rehabilitation by the educator; The actual knowledge of the educator pertaining to the violation; Employment status; Attempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation; Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served; Actual negligence of the educator pertaining to any violation; Penalties imposed for related offenses under subsection (2) above; Pecuniary benefit or self-gain inuring to the educator; Degree of physical and mental harm to a student or a child; Present status of physical and/or mental condition contributing to the violation including recovery from addiction; Any other relevant mitigating or aggravating factors under the circumstances. 50. Based upon the facts stipulated to by the parties, the following mitigating circumstances exist: the offense in this case is a single, isolated one; the actual danger to the public in this incident was minimal; it has been three years since the violation occurred (and in the interim, Respondent has continued to monitor the FCAT without incident); and Respondent has not been previously disciplined by the EPC. 51. The following aggravating circumstances have been shown to exist: Respondent actions deprived students of the educational process, likely resulting in the loss of school funding and hindering the school’s ratings; and a harsh penalty will send the message that Respondent’s conduct will not be tolerated. 52. Petitioner has argued that an additional aggravating circumstance is the failure of any evidence that Respondent has been rehabilitated. In particular, Petitioner has suggested that Respondent lacks any rehabilitation because she has “consistently accused other individuals, including the FCAT’s administrators and supervisors, for her misdeeds rather than accepting the blame.” Petitioner’s argument on this point must be rejected. First, there is no stipulated fact or any evidence that has been offered in this case to support Petitioner’s position. Secondly, Petitioner has failed to consider the fact that Respondent has agreed to the stipulated facts and law which form the basis of this Recommended Order. 53. Ultimately, in recommending a penalty in this case, the most important considerations in this matter should be the extent to which Respondent actually violated the provision alleged in the Administrative Complaint, which has been addressed, supra, and the action taken by Respondent’s employer, the School Board. 54. The extent to which Respondent actually violated the provisions alleged in the Administrative Complaint has been discussed, supra. 55. Just as significantly, the School Board, which, along with the parents and children it serves, suffered the actual harm of Respondent’s conduct, concluded that Respondent was adequately punished by a 30-day suspension rather than termination of her employment. The School Board, therefore, has indicated a willingness to continue to employ Respondent, something it will no longer be able to do if Petitioner’s recommended penalty is carried out. Nor will the School Board be able to continue Respondent’s employment if Petitioner were to suspend Respondent’s certificate for any period of time. 56. Given the School Board’s decision to continue to employ Respondent, any discipline taken by Petitioner should be limited to discipline which will not thwart the local government’s decision to continue to employ Respondent. A suspension of 30 days, considered already served at the time she served her School Board imposed suspension; five years probation; and a requirement that Respondent attend, at her own expense, any seminars or courses the EPC deems appropriate is an appropriate penalty in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered imposing the following penalty: (1) suspending her teaching certificate for 30 days, such suspension to be considered already served; (2) placing her on probation for five years subject to any conditions deemed appropriate by the EPC; and (3) requiring her to attend, at her own expense, any seminars or courses the EPC deems appropriate. DONE AND ENTERED this day 4th day April of, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 4th day of April, 2006.
The Issue The issue for determination is whether Respondent should be suspended, without pay and benefits, and terminated from employment with Petitioner for the offenses set forth in the Amended Administrative Complaint.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: (a) the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an intern principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time intern principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: Finding that Doreen Maynard committed misconduct, immorality, and gross insubordination, violating section 1012.33(4)(c), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.001, 6B-1.006, and 6B-4.009(2), (3), and (4); and Suspending Doreen Maynard, without pay and benefits, and terminating her employment. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 21st day of July, 2011.
The Issue The issues to be determined are whether Respondent violated section 1012.795(d) and (j), Florida Statutes (2011), or Florida Administrative Code Rule 6A-10.081(3)(a) and (e), and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent is a teacher certified by the State of Florida, holding Florida Educator’s Certificate 958493, covering the areas of Elementary Education, Exceptional Student Education (ESE), and Autism Spectrum Disorders, valid through June 30, 2014. At all times material to the allegations in this case, Respondent was employed by the Bay County School District as an ESE teacher at Margaret K. Lewis Center (MKL Center). This is a second career for Respondent. She left a business and technology career to pursue a career in education, specifically working with students with special needs. Respondent obtained her Master’s degree and a special designation to work with special needs students. Respondent was motivated to pursue teaching special education students because she had an aunt with Down’s syndrome who had limited educational opportunities. Respondent taught at Oscar Patterson Elementary for the 2006-2007 school year, and then transferred to MKL Center beginning in the 2007-2008 school year. After Respondent received her state educational certification in autism spectrum disorders, she requested to be assigned to teach an ESE class beginning with the 2010-2011 school year. That year, she was voted as “Teacher of the Year” by her peers. The class to which Respondent was assigned was a challenging class. It was not unusual for students in this classroom to bite, kick, hit, pinch, and trip staff. During the 2010-2011 school year, the number of students was reduced from eight to four, and the number of paraprofessionals was increased from two to three. During the 2011-2012 school year, there were four students in her classroom: C.B., J.B., K.M., and D.C. One paraprofessional, Patricia Lewis, was assigned specifically to D.C. The other two paraprofessionals, Jennifer Shea Saulmon and Nancy Davis, worked with all of the children, and when able to, Patricia Lewis did as well. Ms. Davis, Ms. Saulmon, and Ms. Lewis have seven, fourteen and twenty-seven years of experience, respectively. C.B. had a severe mental disability with a limited ability to comprehend verbal communications and a limited ability to communicate. C.B.’s communication involved single words, sounds, and gestures. He could discern the speaker’s mood, but might not fully understand the content of what was said. For example, C.B. might not understand that someone was saying hello, but would understand that the speaker was friendly towards him. C.B. also had problematic behaviors including biting, pinching, scratching, and hitting. C.B. had an awkward gait and wore ankle orthotics (AFO’s), a type of plastic brace, over his shoe and lower leg to provide stability from the foot to the leg, and to assist in improving his ability to walk. C.B. was ten years old. J.B. was approximately 11 years old in January 2012, and was diagnosed with Autism Spectrum Disorder. He also had a limited ability to communicate using single words, sounds and utterances, and gestures. J.B. also used an iPad to communicate. Over time, someone working with J.B. would develop a greater ability to understand and communicate with him. J.B.’s difficult behaviors included spitting, hitting, kicking, and pinching. K.M. was 11 in January 2012. K.M. was diagnosed with Down’s syndrome, and had previously suffered a stroke which limited her use of one arm. She also had significant intellectual limitations. However, K.M.’s ability to communicate was greater than the other members of the class, and she could understand verbal communications. In addition, K.M. was more independent than her classmates, and was a risk for elopement from both the classroom and the campus. As stated by one of the paraprofessionals, K.M. “was a runner.” By all accounts, K.M.’s behaviors were consistently disruptive, and managing her in a classroom took a significant effort. D.C. was also 11 in January 2012. D.C. was diagnosed as autistic and engaged in repeated self-injurious behaviors. When upset, D.C. would repeatedly strike himself in the head and face, and he often wore a football helmet as a protective measure. D.C. was very strong, and attempts to prevent him from hurting himself could often result in staff members being hurt. There was testimony at hearing that his behavior plan addressed how many he times he was allowed to hit himself or how long he was allowed to hit himself without intervention. However, the behavior plan for D.C. was not in evidence. A portion of the classroom was designed specifically for D.C., with padded walls and a padded floor, in light of D.C.’s tendency to hit his head against hard surfaces as well. He had some beads that he played with that sometimes calmed him. At some point during the 2011-2012 school year, Respondent began to show signs that the stresses of her very challenging classroom were having an effect on her. After the Christmas break, her stress seemed to have intensified. Respondent was having trouble sleeping, suffered from high blood pressure and pain from injuries sustained in the classroom, and was experiencing some depression. Respondent began to “self- medicate” with alcohol at night. There was no credible evidence that Respondent ever drank during the day or was under the influence of alcohol during work hours. At the end of the school day on January 30, 2012, Ms. Lewis approached assistant principal Elizabeth Swedlund to voice some concerns about Respondent’s behavior in the classroom. Ms. Lewis related some events that had occurred in the classroom that day, as well as some general concerns regarding treatment of the students in the classroom. She voiced the following concerns: that Respondent took away D.C.’s beads and would allow him to hit himself for a period of time longer than allowed by his treatment plan; that she made statements to K.M. such as “I could kill you” or “go play in the street”; and that she hit C.B. with a closed hand and kicked him while working in “circle time.” On January 31, 2012, Ms. Swedlund notified her principal, Britt Smith, of the conversation with Ms. Lewis. She decided to speak with the other paraprofessionals in the classroom and after doing so, to report the information to the abuse registry. Principal Smith notified Sharon Michalik, the District’s Executive Director of Human Resources, of the issue with respect to Respondent. As a result, Mike Jones, Chief of Safety, initiated an investigation. Mike Jones visited the campus the following day. All three paraprofessionals were interviewed and asked to provide written statements. He took Respondent for a drug and urine test, which came back negative. On Friday, February 3, 2012, Respondent was notified to meet with Ms. Michalik and other administrators to review the allegations. After this meeting, Respondent was suspended with pay, and the School District planned to proceed with a recommendation for termination. However, instead the parties entered an agreement executed on March 30, 2012, through which Respondent would take a medical leave of absence and would only be allowed to return to a position with the School District if she was found fit for duty. If she returned, she would be required to submit to random drug and alcohol testing. On March 30, 2012, the Department of Children and Families issued a letter to Respondent stating that it found no indicators of physical injury and no indicators of bizarre punishment. On April 27, 2012, Respondent was evaluated by psychologist David J. Smith who opined that at that time, she was not fit for duty. She was re-evaluated on July 26, 2012, and cleared to return to work. At that time, she was assigned to a different school. One of the issues raised by Ms. Lewis was that Respondent permitted D.C. to hit himself more frequently than allowed by his behavior plan. The Administrative Complaint specifically charges that she allowed D.C. to hit himself repeatedly for up to ten minutes, while his behavior plan indicated that he should be allowed to hit himself up to three times. The behavior plan was not entered into evidence. The evidence was unclear as to what the plan actually required, and it was equally unclear exactly what Respondent was doing. For example, there was testimony that she would attempt to redirect him once he started hitting himself, but did not physically intervene for ten minutes. There was other testimony that there was never a time when he was allowed to simply hit himself with no one doing anything. Without being able to examine the behavior plan, and without being able to specify the exact incident or incidents at issue, it is not possible to determine whether Respondent was varying from the requirements of the behavior plan, or if any variation was significant. Ms. Davis reported to Ms. Swedlund that on or about Friday, January 27, 2012, J.B. was in time-out because of bad behaviors. While he was in time-out, he was sitting behind a rolling partition, and Respondent was holding the partition in place so that J.B. would have to remain in place. J.B. spat at Respondent, which is something he did often. Ms. Davis reported that while holding the partition Respondent spat back at him, an action that shocked Ms. Davis. Respondent denies ever spitting on J.B. She testified via deposition that J.B. was spitting while in time-out, and she was holding the barrier while talking to him. She responded to his behavior by saying “you do not spit.” Respondent testified that it was possible that some spittle may have fallen on J.B., but that she never intentionally spit on him. The only person who testified regarding the spitting was Ms. Davis. While she was a very credible witness, there was no testimony regarding how close she was to Ms. Henson or to J.B., or that J.B. reacted in any way. Neither of the other paraprofessionals in the room testified that they saw or heard about the incident, and it is implausible to think that such behavior would go without comment. It is conceivable that in saying, “you do not spit,” that spittle would result. Given the high burden of proof for this proceeding, the allegation has not been proven by clear and convincing evidence. As previously stated, K.M. presented a classroom management problem. She had a tendency to run around the classroom, take her clothes off, or run out of the classroom and sometimes out of the building. She also would tear up items in the classroom and could be very disruptive. Ms. Lewis felt that Respondent had a hard time getting past her dislike of the child. She had heard her say things like, “I could just kill you right now,” and “go ahead and go into the street.” While Ms. Lewis believed K.M. could understand such statements, she did not react to them, except perhaps to run faster. Ms. Lewis did not believe that Ms. Henson was serious when she made the statements, but more likely made them when frustrated by K.M.’s behavior. Respondent did not recall ever making such statements. Neither Ms. Lewis nor the Administrative Complaint identified exactly when Respondent was to have made these statements, although Ms. Lewis specified that they were statements made at different times. While Ms. Lewis testified that she believed Respondent did not like K.M., it is just as likely that she did not dislike the child, but was extremely frustrated by her behavior. All of the paraprofessionals testified that Respondent truly loved the children she worked with, but that she was frustrated and overwhelmed in the very challenging classroom in which she taught. While the evidence was clear and convincing that Respondent made the statements, even Ms. Lewis testified that she did not believe Respondent was serious when she made them. Regardless, the statements were not appropriate statements to make to a child, especially a child with limited intellectual abilities that might not be able to discern whether Respondent was serious. They are, by their nature, disparaging statements. Finally, the incident which caused Ms. Lewis to approach Ms. Swedlund about Respondent involved Respondent’s reactions to C.B. C.B. liked to work on the computer. He would play computer games, such as Dora the Explorer, and was rewarded with computer time for good behavior and finishing all of his assigned work. On Friday, January 27, 2012, C.B. had a rough day, and had been hitting, pinching, and kicking staff. Respondent had spoken with his mother about his behaviors to see if there had been any changes at home that might have contributed to his aggressive behavior. Respondent had told C.B.’s mother that they would have to try some different methods to get C.B. to comply, and that his playing on the computer all day would have to stop. The paraprofessionals testified that on Monday, January 30, 2012, Respondent seemed agitated all day. One said she seemed to carry the frustrations of Friday into Monday. That morning Jennifer Shea Saulmon went to the cafeteria to pick up C.B., who had walked from the parent pickup area without incident, and seemed to be in a good mood. When they reached the classroom, C.B. went straight to the computers. Respondent immediately told him that he could not have computer time. Ms. Saulmon was upset by this, because C.B. had not misbehaved that morning. She questioned Ms. Henson’s decision, and Respondent responded that he could not play on the computer all the time. He then completed his morning work without any disruption, and then walked over to the computers. Ms. Saulmon told him he could not play on the computer at that time. At about 9:15 a.m., the class began “circle time.” During this time, the students sit on the outside of a u-shaped table while Respondent sits on the inside of the “u.” C.B. did not like circle time. On this particular day, he was sitting at the end of the u-shaped table, to Respondent’s left. He began, as he often did, to hit and bite. According to Ms. Saulmon, this behavior usually subsides after about five minutes. This day, however, it did not. C.B. continued to pinch and hit Respondent. In response, Respondent put her arm up with a closed hand (so that the child could not pull and bend back a finger) in a blocking motion, as the teachers and paraprofessionals had been taught to do in order to protect themselves. She said out loud, “I’m blocking, I’m blocking.” However, rather than simply holding her arm up to block against any blows, she would swing her arm toward him to stop the blow, and in doing so, made contact with his arm. Although to Ms. Davis it looked like Respondent was hitting him, she never thought Respondent was trying to hurt C.B. Each time Respondent blocked C.B., he pinched her again, and she blocked him again, which made him angrier. He then started kicking her, and Ms. Davis and Ms. Saulmon believed she kicked him back. However, neither paraprofessional could say that Respondent actually made contact with C.B. They were pretty certain that C.B. was kicking Respondent, and they could see movement toward him by Respondent, and C.B. responded angrily by squealing as he usually did when frustrated or angry. It is just as likely that Respondent was using her leg or foot to try to block C.B.’s kicks, as she stated in her deposition, and that C.B. was angry because she was blocking him. Nonetheless, Respondent’s clear agitation in the classroom that day led to Ms. Lewis’ conversation with Ms. Swedlund about Respondent’s behavior. While all of the paraprofessionals stated concerns about Ms. Henson’s ability to handle that particular class, all were very supportive of her continuing to teach in the special education area. All three seemed to think that the environment of that particular class, which by any measure would be extremely challenging, is one that overwhelmed Respondent, and that she had been in that setting too long. When Respondent returned to work at the beginning of the 2012-2013 school year, she was transferred to Beach Elementary School. The principal at the new school is Glenda Nouskhajian. Ms. Nouskhajian considers Respondent to be one of her lead teachers in the ESE department, and has no performance- related concerns about her. The only issue Respondent has had since coming to Beach Elementary was a minor paper-work issue related to transferring schools within the district. Respondent is not working in a stand-alone classroom like she was before. She is what Ms. Nouskhajian referred to as a “push-in,” meaning that she goes into other teachers’ classrooms and works with students in small groups in an inclusion setting. She works with the lowest quartile of students, and helps with all of these students’ interventions. Ms. Nouskhajian testified that the students with whom Respondent works are making “great strides,” and Respondent is an educator she would “absolutely” seek to retain. Ms. Nouskhajian knew that there was an issue at Respondent’s prior school, but did not investigate the details. She stated that Respondent had been placed at Beach Elementary by Sharon Michalik, and “I knew that if she was a danger to students, Sharon Michalik would not have placed her at my school . . . . That she went through the counseling and everything she had to do so when she came to my school it was a total fresh start.” Since coming to Beach Elementary, Respondent’s evaluation for the 2012-2013 school year was overall effective, with all categories rated as effective or highly effective. In sum, there is clear and convincing evidence that Respondent made inappropriate remarks to student K.M. There is not clear and convincing evidence that Respondent spat on J.B., or that she hit or kicked C.B. Likewise, there is not clear and convincing evidence that she varied significantly from D.C.’s behavioral plan or acted in a way that allowed him to hurt himself. There is clear and convincing evidence that Respondent was frustrated and overwhelmed in the autistic classroom and, despite having asked for the assignment, had been teaching in that environment for too long to be effective, given the violent tendencies of the children in that setting. There is clear and convincing evidence that she took a leave of absence in lieu of termination and could only return to the classroom after an evaluation found her fit for duty. A change of setting was needed and has served to re-invigorate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated rule 6A- 10.081(3)(e). It is further recommended that Respondent be reprimanded and placed on probation for a period of two years, subject to such terms and conditions as the Commission in its discretion may impose. DONE AND ENTERED this 24th day of March, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 24th day of March, 2014. COPIES FURNISHED: David Holder, Esquire J. David Holder PA 387 Lakeside Drive Defuniak Springs, Florida 32435 Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 224 Tallahassee, Florida 32399 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399
