The Issue Whether Petitioner is entitled to an unpaid leave of absence from employment as a teacher of the Flagler School District, from July 1, 1996 until expiration of her commission as School Board member on November 19, 1996.
Findings Of Fact Petitioner is a teacher employed by the Flagler County School District. Petitioner has been employed for more than three years, has been recommended by the School Board and reappointed and has become eligible for, and has received, a Professional Services Contract with tenure. Petitioner has been employed by the Flagler County School System for six years. She is enrolled in the Florida Retirement System, and her eligible employment under that system consists entirely of her service in the Flagler County School System. Petitioner was appointed by the Governor as a School Board member on or about September 5, 1995. She had just begun School Year 1995-1996 as an elementary teacher at Bunnell Elementary School. Petitioner was appointed to serve as a School Board member until November 19, 1996. Her appointment expires upon the election and start of a member to fill the remaining two years of the term of a deceased member of the School Board. Following her appointment to the School Board, Petitioner applied for a leave of absence as teacher in order to take her position as a School Board member. Petitioner sought an unpaid leave of absence from the time of her appointment to the School Board until the end of the 1995-1996 School Year. The Superintendent recommended that her request be approved and the School Board approved it. At that time, the Superintendent made clear to her that any leave of absence beyond June 30, 1996 would be subject to the School Board's approval, notwithstanding the Superintendent's current or future recommendations. Petitioner's request for leave of absence near the commencement of School Year 1995-1996 presented no administrative inconvenience to the School District, and minimal disruption of the routine of her students. Petitioner was tendered renewal of her teaching contract for the 1996- 1997 School Year, apparently effective August 13, 1996. Petitioner timely applied to the Superintendent for an extension of her leave of absence as a teacher for that part of School Year 1996-1997 that overlapped the time up to the expiration of her term as a School Board member, November 19, 1996. The Superintendent recommended that Petitioner's request for extension of leave of absence without pay for the applicable portion of School Year 1996- 1997 be granted. In considering Petitioner's request for an extension of her leave of absence into School Year 1996-1997, the Superintendent considered the requirements of efficient operation of the School District, including tentative discussions with his staff about possible positions suitable to Petitioner's experience upon her projected return November 19, 1996 from her requested extended leave of absence. The position to which Petitioner has been appointed at Bunnell Elementary School commencing August 13, 1996 is not being held open by Respondent, but has been filled by another teacher irrespective of these proceedings. There is a tentatively identified position suitable to Petitioner's experience. Mr. Bowen, Director of Personnel, Transportation, and Insurance, opined that if the tentatively identified position were not filled until November 19, 1996, it might be disruptive to good education of the particular type of students targeted for the program. The School District has no imminent need to fill the tentatively identified position, but there is no guarantee it still will be available on November 19, 1996. In the interim, other positions may open through maternity leave, illness, death, etc. or they may not. On average, there are three or four teaching positions that open and that must be re-filled every school year. There is no evidence that a position which opens, if any, will be one for which Petitioner is qualified. If there is no position for which Petitioner is suitable available on November 19, 1996 she cannot be placed in Flagler County. Seniority has no effect; suitability by educational qualifications and credentials does. If Petitioner's leave of absence is not approved and she fails to commence work on August 13, 1996, she will forfeit her contract as a teacher. If, after November 19, 1996, Petitioner is neither a School Board member nor a teacher on approved leave of absence, she will no longer be covered by the Florida Retirement System. If Petitioner is denied leave and returns to the position which is now available she will lose no employment benefits. The Superintendent recommended to the Respondent Board that the extension of Petitioner's leave of absence be approved because of the extraordinary circumstance of her gubernatorial appointment to the position of School Board member, and because the requested leave period was for such a short portion of School Year 1996-1997, (approximately 96 days including weekends and autumn holidays when no teaching occurs), that it was acceptable within his expert educator administrative experience. On April 23, 1996, the Respondent School Board voted to refuse the Superintendent's recommendation to extend Petitioner's leave of absence without pay for the additional time she would otherwise be teaching. Petitioner's request was the only recommended leave request not approved at that School Board meeting. An extended leave for over one school year has not been granted by the Flagler County School Board since 1978. The Respondent Board had no evidence before it other than the Superintendent's recommendation when it considered the extension of Petitioner's leave. During the Superintendent's thirteen-year experience which has been since 1983, the Board has always accepted his recommendations with respect to leaves of absence. Due to the death of another School Board member and the inability of Petitioner to participate in the vote, only three Board members participated in the vote on the Superintendent's recommendation for extension of Petitioner's leave of absence. Member Dance moved that the leave be denied because the Board had never before granted an extended leave for an employee to accept a full time salaried position. The motion was approved by two members, Ms. Dance and Mr. Marier. The only "concerns" expressed by Ms. Dance and Mr. Marier, who testified at formal hearing, related to speculation and assumptions that Petitioner presented a case of first impression, certainly for their School Board and probably for the State of Florida, and that if Petitioner were granted an extended leave of absence, it might be difficult to administer the system in the event of a deluge of similar requests from teachers requesting leave without pay to take other salaried positions. Ms. Dance has served on the School Board for twelve years and felt that in a growing school system, such as the Flagler County School District, it is inefficient to remove teachers and then attempt to have positions made available to them upon return from leave. If extended leave is granted, Petitioner will not teach for roughly 96 days of the 1996-1997 School Year and will only teach in Flagler County if re- employed in a position actually available on November 19, 1996. See, Findings of Fact 12-16 supra. Superintendent Kaupke shared Ms. Dance's concern for orderly administration but still recommended approval of extended leave for Petitioner. On average, leaves of absence of varying duration are recommended and granted for a dozen or more teachers each School Year, and there are three to four permanent teacher replacements each year without any significant effect on efficiency of the system or disruption of the education of even elementary school students. In the past, the Superintendent has consistently denied requests of employees to take other salaried positions and the School Board has not granted any. In one instance, a teacher lied to Dr. Kaupe about his reason for requesting a leave of absence without pay and took a salaried teaching position in another state. The Superintendent would not have recommended a leave of absence be granted had he known the true circumstances. During her employment as a teacher, Petitioner also worked part-time in a separate job as a child care apprenticeship instructor. The School Board has no rules, policies or past precedents which forbid dual employment by school teachers, so long as the second job does not interfere with their responsibilities under their teaching contracts with the School Board. For the balance of 1996, all regular School Board meetings are scheduled to be held at 7:30 p.m. on the third Tuesday of each month. Although this schedule is subject to change, at the time of formal hearing herein, there were no scheduled events for School Board members during a school teacher's normal duty hours. Petitioner's requested extended leave of absence was volitional, but was not submitted for the purpose of accepting another salaried position which would physically prevent the performance of her duties as a teacher. Rather, it was submitted in order to conform to the requirements of Section 112.313(10) F.S. and the holding in Wright v. Commission on Ethics, 389 So.2d 662 (Fla. 1980).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Flagler County enter a Final Order granting Petitioner's request for extension of unpaid leave of absence through November 19, 1996. DONE AND ENTERED this 8th day of August, 1996, in Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1996.
The Issue Whether just cause exists for Petitioner, the Polk County School Board, to terminate Respondent, Helena Mays, from her employment as a classroom teacher.
Findings Of Fact It is well established under Florida law that determining whether alleged misconduct violates a statute or rule is a question of ultimate fact to be decided by the trier- of-fact based on the weight of the evidence. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Thus, determining whether the alleged misconduct violates the law is a factual, not legal, inquiry. “The School Board bears the burden of proving by a preponderance of the evidence each element of the charged offense which may warrant dismissal.” Cropsey v. Sch. Bd., 19 So. 3d 351, 355 (Fla. 2d DCA 2009) (citing Dileo v. Sch. Bd. of Dade Cty., 569 So. 2d 883 (Fla. 3d DCA 1990)). Preponderance of the evidence is defined as “the greater weight of the evidence,” or evidence that “more likely than not” tends to prove a certain proposition. S. Fla. Water Mgmt. v. RLI Live Oak, LLC, 139 So. 3d 869, 872 (Fla. 2014). The School Board contends that “just cause” exists to terminate Ms. Mays because she improperly required K.G., D.G., and C.C. to clean the floor with a toothbrush on one occasion each, which constituted “misconduct in office.” § 1012.33(1)(a); Fla. Admin. Code R. 6A-5.056(2)(b), (c). The School Board alleges two violations of “the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A-10.081, F.A.C.,” and two identical violations of “adopted school board rules.” First, the School Board alleges that Ms. Mays breached her obligations to K.G., D.G., and C.C. by “intentionally expos[ing] [them] to unnecessary embarrassment or disparagement.” Fla. Admin. Code R. 6A-10.081(2)(a)5.; Polk Cty. Sch. Bd. R. 3210A.5. Second, the School Board alleges that Ms. Mays breached her obligations to K.G., D.G., and C.C. by failing to “make reasonable effort to protect [them] from conditions harmful to learning and/or to [their] mental and/or physical health and/or safety.” Fla. Admin. Code R. 6A-10.081(2)(a)1.; Polk Cty. Sch. Bd. R. 3210A.1. There is no dispute that Ms. Mays required K.G. and D.G. to each clean the floor with a toothbrush. Thus, the relevant issue as to these students is whether the School Board proved by a preponderance of the evidence that this disciplinary tactic constituted “misconduct in office.” However, as to C.C., the evidence did not establish that Ms. Mays required him to clean the floor with a toothbrush. C.C. testified that he cleaned the floor with a washcloth and had no recollection of ever using a toothbrush. Because the School Board’s termination notice focused solely on the use of a toothbrush as an improper disciplinary tactic, it cannot belatedly allege now that requiring C.C. to clean the floor with a washcloth constituted misconduct in office. In fact, a washcloth is more akin to a sponge, which the School Board does not contend was misconduct given its decision to proceed only on the instances involving a toothbrush. Nevertheless, the undersigned will evaluate the evidence as it relates to C.C. in the same manner as the other two students. Based on the weight of the evidence detailed above, the School Board failed to establish by a preponderance of the evidence that Ms. Mays exposed the students to unnecessary embarrassment or disparagement, much less that she did so intentionally. None of the three students testified that they felt embarrassed or disparaged, and Investigator Marbutt did not believe that Ms. Mays intentionally tried to embarrass or harm them. At most, Investigator Marbutt agreed that there were “potential violations for creating physical or emotional harm and potentially humiliating the students,” but he never explained how the evidence substantiated that “potential” belief. Principal Burkett also confirmed that Ms. Mays never said she intended to humiliate or inflict pain on the students. In sum, the credible weight of the evidence does not establish that Ms. Mays violated rule 6A-10.081(2)(a)5. or School Board rule 3210A.5. Likewise, based on the weight of the evidence discussed above, the School Board did not establish by a preponderance of the evidence that Ms. Mays unreasonably failed to protect the students from conditions harmful to learning, their mental and/or physical health, or their safety. No credible, competent evidence was presented that this disciplinary tactic unreasonably exposed the students to any such harmful conditions, much less a safety hazard. K.G. and D.G. offered no testimony that they suffered pain while being disciplined in this manner and, though C.C. indicated that his hands were sore, it was the same pain he experienced when he wrote too much. Principal Burkett testified that the School preferred a more positive method of discipline, but neither he nor any other witness explained how these three isolated events that were not shown to last more than 15 minutes unreasonably harmed the students. In short, the credible weight of the evidence does not support the allegation that Ms. Mays violated Rule 6A-10.081(2)(a)1. or School Board Rule 3210A.1. Accordingly, the undersigned finds as a matter of ultimate fact that the School Board did not show by a preponderance of the evidence that it had “just cause” to terminate Ms. Mays. § 1012.33(1)(a), Fla. Stat.
Recommendation Based on the foregoing Findings of Fact, Ultimate Findings of Fact, and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order dismissing the charges against Ms. Mays, reinstating her employment as a teacher, and awarding her back pay to the date on which she was first suspended without pay. DONE AND ENTERED this 4th day of March, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 4th day of March, 2019.
The Issue Whether just cause exists to sustain Respondent's five-day suspension from employment without pay with the Petitioner based on the allegations in the Notice of Specific Charges.
Findings Of Fact Petitioner is a duly-constituted district school board charged with the duty to operate, control, and supervise all free public schools within Miami-Dade County, Florida. Article IX, § 4(b), Fla. Const. At all times relevant to the proceeding, Respondent has been employed by the School Board pursuant to a collective bargaining agreement under the United Teachers of Dade ("UTD"). Weatherspoon has been a physical education teacher for 28 years with the School Board. In 2013, Weatherspoon started working at Hibiscus Elementary School ("Hibiscus"). He is the only physical education teacher for grades two through five. Weatherspoon runs a structured class. When students arrive at their physical education class, they are expected to stand in a straight quiet line, and then go into the physical education shelter, and sit down for taking roll. Weatherspoon uses a chain of consequences for student misbehavior. It progresses from warnings, to exclusion from activities, to parent contact, then to detentions and referrals. During the 2018-2019 school year at Hibiscus, K.C. was a fourth-grade student in Respondent's physical education class. On or about March 5, 2019, K.C. and another student got into a physical fight. Weatherspoon excluded K.C. and the other student from activities and put them in time-out for two days, which meant K.C. had to sit next to the wall during the physical education class instead of participating. After K.C.'s punishment was completed, he should have been rejoining the activities for the physical education class. However, on March 7, 2019, when rejoining the class, K.C. attempted to be first in line and started fighting with student J to be first. Weatherspoon responded to K.C.'s second fight by instructing K.C. to go back to the time-out area against the wall because he was putting his hands on somebody again. Weatherspoon also instructed student J to go to the time-out area for his misbehavior and student J went to time-out. K.C. repeatedly told Weatherspoon "no" and refused to go back to the time- out area after Weatherspoon instructed him to do so. Another student, B.C., walked over during Weatherspoon's attempt to have K.C. go back to time-out and then B.C. informed Weatherspoon that K.C. had done his time already. Weatherspoon responded to B.C., "Don't get involved with this. This is not your concern." Afterwards, B.C. immediately turned around, and walked back to sit down. Next, Weatherspoon redirected his attention back to K.C., repeatedly instructing him to go sit at the wall. K.C. continued to respond "no" he was not going to sit at the wall. Weatherspoon firmly directed K.C. to sit at the wall with a raised voice. Upset, K.C. walked out of the gym instead of following Weatherspoon's instructions for his misbehavior. Weatherspoon called security to report that K.C. had left the class early. The next day, Weatherspoon attended a parent teacher conference with Principal Veronica Bello ("Bello") and K.C.'s parents about his interim failing grade in physical education. After the discussion about K.C.'s interim failing grade, the meeting turned confrontational and K.C.'s father accused Respondent of pushing K.C., which was the first time Weatherspoon was made aware of any allegation he pushed K.C. The School Board investigated the K.C. pushing allegation. During the investigation, written statements were taken from five students, including B.C., that were in K.C.'s physical education class. None of the students reported witnessing Weatherspoon push K.C. on March 7, 2019. K.C.'s written statement dated March 11, 2019, stated that Weatherspoon pushed him twice and that Weatherspoon also pushed B.C. once on March 7, 2019. Ultimately, based on the investigation, probable cause was determined to support the allegation that Weatherspoon pushed K.C. On August 22, 2019, a conference-for-the-record ("CFR") meeting was held to discuss the investigative findings. Respondent was present at the CFR. Following the CFR, the School Board adopted the recommendation that Respondent be suspended for five days for the March 7, 2019, incident because Respondent had been previously counseled and issued a directive not to interact with children by pushing them. Prior Disciplinary History On or about September 13, 2018, Weatherspoon received a written reprimand after a School Board investigation concluded that he shouted, kicked, and pushed a student. Weatherspoon's reprimand, in pertinent part, directed Respondent to: Strictly adhere to all Miami-Dade School Board Policies; specifically, 3210, Standards of Ethical Conduct; 3210.01, Code of Ethics; and 3213, Student Supervision and Welfare. Cease and desist from using physical means to discipline or redirect students while working for M-DCPS; Cease and desist from placing your hands on students for any reason while working as an employee of M-DCPS; and Safeguard emotional and physical well-being of students at all times while working as an employee of the District. * * * 8. Conduct yourself; both in your employment and in the community, in a manner that will reflect credit upon yourself and M-DCPS. P9-10 Hearing At hearing, K.C. admitted that "[he] got pretty upset" when he was told to go to time out again. K.C. unpersuasively claimed during the hearing that Respondent pushed him in the stomach one time. However, K.C.'s testimony is contrary to his written statement from the investigation where he wrote that Weatherspoon pushed him twice.1 Similarly, K.C. also testified Weatherspoon pushed B.C., which conflicts with B.C.'s testimony at hearing that Respondent "did not touch [her]."2 The undersigned does not credit K.C.'s testimony based on his contradictory statements about the events on the date of the alleged incident, which diminishes the trustworthiness of his testimony. At hearing, Weatherspoon provided credible testimony regarding the events of March 7, 2019, and his interactions with K.C. Weatherspoon testified that an oral dispute occurred between K.C. and him. Weatherspoon credibly explained that after directing K.C. to go to time-out several times, K.C. repeatedly refused to go to the wall stating, "no," and then K.C. walked out of the physical education class. Weatherspoon also credibly made clear, "I did not touch him." Findings of Ultimate Fact Weatherspoon's reliable testimony precludes a finding that he acted in the fashion alleged in the Notice of Specific Charges. Accordingly, the undersigned finds that Weatherspoon's credible and persuasive testimony established that no physical contact was made with K.C. on March 7, 2019. Therefore, no competent substantial Pet. Ex. 8. The undersigned finds that B.C.’s testimony that Weatherspoon pushed K.C. is not credible because the evidence shows that B.C. was walking away back to her seat when the alleged incident occurred. Additionally, B.C. did not report any pushing incident in her original student statement. Moreover, B.C. only reported an alleged incident when questioned by an investigator approximately seven months later. Likewise, the undersigned rejects K.C.’s mother’s testimony because if a parent had been informed that their child was pushed by a teacher, in all likelihood, that allegation would be the first thing and main topic discussed at the parent teacher meeting before any failing grades, not the discussion topic at the end of the meeting. evidence established any factual basis for the School Board's proposal to suspend Respondent for five days for the offenses charged in the Notice of Specific Charges.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED that the Miami-Dade County School Board enter a final order dismissing the Notice of Specific Charges, rescinding its previous decision to suspend Respondent without pay for five days, and awarding him back pay. DONE AND ENTERED this 17th day of March, 2021, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2021. COPIES FURNISHED: Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Room 430 Miami, Florida 33132 Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Room 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The Respondent seeks to cancel and/or rescind the continuing contract of the Petitioner based on the fact that she refused to report to work as requested. The issue to be resolved is whether the Respondent may refuse to grant an instructor who is the holder of a continuing contract a consecutive fifth year of personal leave and secondly whether or not the Respondent may properly dismiss its instructional employee who has requested and has been denied such leave and thereafter refuses to report to work as directed.
Findings Of Fact The testimony of Wilbur S. Franklin, Principal, and Armando Henriquez, Superintendent, District School Board of Monroe County and other documentary evidence reveals that the Petitioner was granted personal leave for four consecutive school years beginning with the 1971-72 school year. The Petitioner also requested personal leave for a fifth year (school year 1975-76) and the principal of the school to which she was last assigned and who was responsible for approving such requests denied it. Messr. Franklin, Principal, testified that his reason for denying the Petitioner a fifth year of personal leave was based on the fact that he needed to make permanent staffing recommendations and the situation in which the Petitioner presented posed a problem in that from year to year he did not know whether or not she would return to school or whether she would again request an additional year of personal leave. He testified that in making his staff recommendations, he sought the best instructors in order to have a sound overall educational program and in order to fulfill that goal, he sought to utilize the services of the most qualified instructors available. The Petitioner testified that during the four years of annual leave which she was granted, she obtained a masters degree in guidance and counseling and that she thought that her training and educational background was more attuned to that type position and that was the position in which she was seeking with the Respondent. She testified that she was certified and was holder of a continuing contract as a classroom teacher and that her employment with the Respondent was in the areas of elementary education, i.e., fourth grade and below. She further testified that she made application for part-time and full- time positions in the areas of guidance and counseling and while vacancies have occurred during those times in which she had an application pending, she was bypassed and she voiced her opinion that based on her education and tenure, she has been discriminated against. In this regard the undersigned asked her to point to specific instances which would substantiate her position and she was unable to do so during the course of the hearing. She testified that vacancies occurred and were filled but she did not know what the educational background of the person(s) who was selected to fill these positions. The Petitioner has been an instructor within the county for more than fifteen years and she, as earlier stated, is the holder of a continuing contract. During March, 1975, she requested by letter a fifth year of annual leave and the Respondent, through its Principal, Messr. Franklin, advised that a fifth year of annual leave would not be granted to her. The Petitioner appealed this denial up to the level of superintendent and he sustained the Principal's recommendation. Messrs. Arthur, Assistant Superintendent Monroe County School District, Armando Henriquez and Wilbur Franklin, Principal, all testified that when the school year 1975-76 began, the Petitioner did not report for duty and has not reported during the current school year. They all testified that while they had no direct conversations with the Petitioner, they have corresponded through written communiques. The Petitioner was given 10 days following the conclusion of the hearing to submit any supporting memoranda which would tend to substantiate her claim that her denial of a position in guidance and counseling was done for ulterior and other unlawful reasons. Respondent's counsel asked the undersigned to take official notice of Section 231.43,44, Florida Statutes, regarding absence without leave and school board rules and regulations 1.4.13 dealing with absence without leave and 1.4.14, personal leave without pay as to the discretion vested in the Respondent with regard to setting school policies. The Petitioner in accordance with her request for ten days leave to file a written statement and/or other documentary evidence supportive of her position, has submitted such and it has been duly considered. Section 231.43, F.S., states, in pertinent part, that the school board shall adopt regulations prescribing conditions under which the instructional staff shall be granted personal leave which when granted shall be approved by the superintendent. In keeping with this dictate, the Respondent promulgated certain guides for the granting of leave (See Board's Exhibit No. 9 received in evidence and made a part hereof). Section 231.44, F.S., dealing with "Absence without leave" states pertinently that any instructor who is willfully absent from duty without leave shall forfeit compensation...and his contract shall be subject to cancellation...(Emphasis added). It is true that the Petitioner has requested positions in areas which she was certified and the evidence indicates that, at least on one occasion, a vacancy existed and was filled by another applicant. However absent any evidence that the successful applicant was selected based on an arbitrary or capricious method or that the Petitioner was not selected due to some discriminatory or other unlawful means, it must be inferred that the Respondent employment selection process was fair. Nor was any evidence submitted which tends to show that the Respondent's attempt to dismiss the Petitioner was initiated for any reason other than the stated reason advanced by Messr. Franklin to the effect that he was desirous of establishing a stable and efficient complement of instructors. It is only logical that an administrator would seek to achieve this. Based on the above and the entire record, it is recommended that the Respondent be permitted to terminate the employment of the Petitioner, Betty Suarez Patterson for failing to report for work and continuing to do so at her assigned position at Truman Elementary School, Key West, Florida. DONE and ORDERED this 28th day of January, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1976. COPIES FURNISHED: Hilary U. Alberry, Esquire 310 Fleming Street Post Office Drawer 1430 Key West, Florida 33040 Betty Suarez Patterson 3712 Donald Avenue Key West, Florida 33040
The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of August, 2018.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 16, 2000, and, if so, the discipline that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Palm Beach County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes. Mr. Navarro began working for the School Board as a custodian in July 1996. He was assigned full-time to the custodial staff at C.O. Taylor/Kirklane Elementary School ("Taylor/Kirklane Elementary") during the 1998-1999 and 1999- 2000 school years. The terms of Mr. Navarro's employment are governed by the provisions of the Agreement between The School District of Palm Beach County, Florida, and National Conference of Firemen & Oilers, Local 1227, July 1, 1999 - June 30, 2002 ("Union Contract"). On January 22, 1999, Mr. Navarro suffered an injury to his back while he was lifting several tables to put them on the stage in the school cafeteria; the tables slipped, and Mr. Navarro fell. Mr. Navarro experienced a sharp pain in his back that almost kept him from walking, but he finished his shift that night, which was a Friday night.2 Because of the pain in his back, Mr. Navarro could not get out of bed on Saturday or Sunday, and, on Monday, he went to see his personal doctor, J.J. Bogani, M.D. Dr. Bogani examined Mr. Navarro and prescribed pain medication. Dr. Bogani advised Mr. Navarro to file a workers' compensation claim with the School Board, which he did. As a result of his workers' compensation claim, Mr. Navarro was referred to a Dr. Goldberg, who examined and treated him on February 1, 1999. At the times material to this proceeding, Dr. Goldberg was one of the physicians who acted as a primary physician, or "gatekeeper," for employees of the School Board who were injured on the job and whose care was covered by workers' compensation insurance. Dr. Goldberg diagnosed Mr. Navarro's injury as lumbar strain. Mr. Navarro saw Dr. Goldberg again on February 3, 1999, and Dr. Goldberg prescribed a back belt for Mr. Navarro. On Mr. Navarro's third visit on February 8, 1999, Dr. Goldberg found that Mr. Navarro had reached maximum medical improvement with respect to the lumbar strain and that the lumbar strain had been resolved. Dr. Goldberg released Mr. Navarro to full-duty work, with an impairment rating of zero percent. Dr. Goldberg examined Mr. Navarro again on March 2, 1999, and Dr. Goldberg reaffirmed his diagnosis of lumbar strain, prescribed physical therapy for Mr. Navarro three times per week for two weeks and returned Mr. Navarro to full-duty work as of March 3, 1999. Dr. Goldberg did not examine Mr. Navarro subsequent to March 2, 1999. In early April 1999, Miguel Mendez, an attorney specializing in workers' compensation, contacted the company that administers the School Board's workers' compensation program on Mr. Navarro's behalf and requested that Mr. Navarro be evaluated by an orthopedist, Dr. Merrill Reuter. The administrator responded in a letter dated April 7, 1999, that Dr. Goldberg declined to recommend an orthopedic evaluation. Mr. Mendez was advised that Mr. Navarro could request a new gatekeeper physician, and a list of approved gatekeeper physicians was included with the letter. Mr. Navarro did not select a new gatekeeper physician until June 2000, even though he continued to have severe back pain. Dr. Bogani, Mr. Navarro's personal physician, treated him for his back problems from March 1999 until June 2000. Agartha Gragg was appointed principal at Taylor/Kirklane Elementary in July 1999, and she was apparently suspicious of Mr. Navarro's work attendance from the beginning of her tenure.3 One of the first changes she made as principal was moving the custodians' sign-in/sign-out log to her office so she could keep track of the comings and goings of the custodial staff. The School Board's personnel records show that Mr. Navarro was absent on annual leave, sick leave, sick leave charged to annual leave, or sick leave charged to "without pay,"4 on January 5 through 14, 18 through 21, and 27 and 28, 2000.5 On January 27, 2000, Dr. Bogani wrote a note on a page of his prescription pad certifying that Mr. Navarro was not able to return to work until January 31, 2000, and that Mr. Navarro needed to be restricted for two weeks, with no heavy lifting or bending. The School Board's records reflect that Mr. Navarro was absent on leave "without pay," sick leave charged to annual leave, or sick leave charged to "without pay" on February 4, 7, through 18, and 21, 2000. Dr. Bogani gave Mr. Navarro a certification dated February 7, 2000, indicating that he could return to work on February 8, 2000. In February 2000, Ms. Gragg received several complaints about Mr. Navarro's job performance from members of the teaching staff. The complaints involved Mr. Navarro's failure to keep his assigned areas clean, especially his failure to keep the floors clean. At the time, Mr. Navarro was working in the area that included the kindergarten classrooms, and one kindergarten teacher wrote Ms. Gragg a note praising the substitute custodian and advising Ms. Gragg that her area was much cleaner when Mr. Navarro was absent. The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, or sick leave charged to "without pay" on March 6, 7, and 13 through 17, 2000, except for one hour on March 13, 2000. Dr. Bogani gave Mr. Navarro a certification dated March 7, 2000, indicating that he could return to work on March 8, 2000. On March 13, 2000, Dr. Bogani gave Mr. Navarro a certification stating that Mr. Navarro would not be able to work during the week of March 13, 2000 and that he would be unable to lift more than 15 pounds on his return to work. In a letter dated March 7, 2000, Ms. Gragg directed Mr. Navarro to attend a meeting with her on March 13, 2000, to discuss his excessive absences and his unsatisfactory job performance. Ms. Gragg advised Mr. Navarro in the letter that he could bring a representative with him and that the meeting could result in disciplinary action. A note at the bottom of the letter states that Ms. Gragg's secretary, Rosa McIntyre, read the letter to Mr. Navarro in Spanish. Mr. Navarro attended the meeting with Lourdes Martinez, a paralegal employed in Mr. Mendez's office, as his representative; the other attendees were Ms. Gragg and Ms. McIntyre. The meeting was summarized in a letter to Mr. Navarro dated March 13, 2000, entitled "Verbal Reprimand With a Written Notation," in which Ms. Gragg noted that Mr. Navarro explained that both his absences and his poor job performance were due to medical reasons. The letter reflects that, at the meeting, Ms. Gragg directed Mr. Navarro to provide medical certification from his doctor for any future absences; directed Mr. Navarro to review cleaning procedures with the Interim Head Custodian at Taylor/Kirklane Elementary; recommended that Mr. Navarro contact Ernie Camerino's6 office to discuss leave options for which he might be eligible; recommended that Mr. Navarro contact the School Board's Employee Benefits and Risk Management office to discuss medical disability options that might be available to him; advised Mr. Navarro that his job performance would be reviewed on April 18, 2000; and, finally, advised Mr. Navarro that, if he failed to follow the directives and recommendations set forth in the letter, he would be subject to further discipline, including termination of his employment. The March 13, 2000, letter was prepared in both an English and a Spanish version and was sent to Mr. Navarro by certified mail. Ms. Gragg also noted in the March 13, 2000, reprimand letter that she might change the area Mr. Navarro was assigned to clean. Ms. Gragg did change Mr. Navarro's assignment, but, according to Mr. Navarro, the change was for the worse because he was required to carry a vacuum cleaner on his back and to vacuum carpeted floors, both of which put a lot of strain on his back. The School Board's records reflect that Mr. Navarro was absent on sick leave, sick leave charged to annual leave, and sick leave charged to "without pay" on April 5 through 7 and 28, 2000, and for four hours on April 27. On May 1, 2000, Dr. Bogani certified that Mr. Navarro was under his care from April 28 through May 2, 2000, and noted that his office should be called if there were any questions. On April 17, 2000, Ms. Gragg received a complaint from a member of the teaching staff that Mr. Navarro had not vacuumed the carpet in her classroom the previous week. A copy of the complaint was provided to Mr. Navarro, and he went to Ms. Gragg's office on April 17, 2000, to discuss the complaint. In a letter dated April 17, 2000, Ms. Gragg requested that Mr. Navarro meet with her to discuss his job performance and any concerns he might have regarding his job. This letter was prepared in both an English version and a Spanish version, and Mr. Navarro signed the acknowledgement that he had received the letter on April 17. Mr. Navarro did not, however, meet with Ms. Gragg during the month of April 2000.7 The School Board's records reflect that Mr. Navarro was absent on sick leave charged to annual leave or sick leave charged to "without pay" on May 1, 2, 11, 12, 15 through 19, 26, and 30, 2000; Mr. Navarro was also absent for five hours on both May 22 and 25, 2000. On May 11, 2000, Dr. Bogani provided certification that Mr. Navarro would be out of work on May 11 and 12, 2000, "for health reasons," noting that his office should be called if there were any questions. On May 15, 2000, Dr. Bogani provided certification that Mr. Navarro would not be able to work on May 15 through 19, 2000, because of "severe muscle spasm in lumbar spine," noting that Mr. Navarro would not be able to vacuum for at least a month. On May 26, 2000, Dr. Bogani provided certification that Mr. Navarro had been under his care for back problems and that Mr. Navarro would be under his care from May 26 through 30, 2000. In a letter dated May 11, 2000, Ms. Gragg notified Mr. Navarro that he was to attend a meeting on May 17, 2000, to discuss allegations of excessive absences and to review his job performance, that he could bring a representative to the meeting, and that the meeting could result in disciplinary action being taken against him. The letter was prepared in both an English and a Spanish version. Meanwhile, Ms. Gragg completed Mr. Navarro's annual evaluation in which she gave him an overall unsatisfactory rating and rated his performance unsatisfactory in several categories, including attendance. Ms. Gragg set forth Mr. Navarro's deficiencies on a separate sheet attached to the annual evaluation, as follows: Job Knowledge You failed to effectively clean the "gang" bathrooms in the main building May 15- May 23, 2000. [Correct dates are April 15- April 23, 2000][8] You failed to effectively clean the floors in Bldg 200 on March 23, April 17-May 25, 2000. [Correct dates are April 17-April 25, 2000, see endnote 9.] Self Management/Self Motivation You did not complete assigned duties in a timely manner. Restrooms in the main building were not cleaned on May 15-23, 2000. [Correct dates are April 15-April 23, 2000, see endnote 9.] Interpersonal effectiveness You failed to complete your assigned duties, thus causing your co-workers to assume extra responsibilities. Mr. Angel Rivera, Head Custodian, was required to clean you assigned areas on March 23, April 17-May 25, 2000. [Correct dates are April 15-April 25, 2000, see endnote 9]. Ms. Gragg also noted on the annual evaluation form that Mr. Navarro had been absent 53 days during the 1999-2000 school year and that she had previously recommended that Mr. Navarro inquire about his eligibility for appropriate leave. The evaluation form was signed by Ms. Gragg and dated May 18, 2000, and, at some point, Ms. Gragg discussed the evaluation and the specific deficiencies and improvement strategies with Mr. Navarro. A note dated May 19, 2000, signed by Ms. McIntyre, indicates that the evaluation was translated into Spanish for Mr. Navarro and that Mr. Navarro refused to sign the form. In a letter dated May 23, 2000, Ms. Gragg issued Mr. Navarro a written reprimand for his failure "to report to work in accordance with published rules and the duties and responsibilities" of his job. Specifically, Ms. Gragg noted that Mr. Navarro had been put on notice on March 20, 2000, that he was to report to work on a regular basis; that he had been absent 14.5 days since March 20, 2000; that he had been absent a total of 53 days during the school year; and that he was absent on May 18 and 19, 2000, but did not call to inform her office of his absence. Mr. Gragg advised Mr. Navarro in this letter that, if he engaged in similar conduct in the future, he would be subject to further discipline, including termination of his employment. The letter was prepared in both an English and a Spanish version. It is not clear from the letter whether Ms. Gragg was reprimanding Mr. Navarro for excessive absences or for failing to call to inform her office of his absences on May 18 and 19, 2000. Ms. Gragg was advised in a letter from a teacher dated May 25, 2000, that Mr. Navarro had failed to empty the garbage can in her classroom on May 24, 2000, and Ms. Gragg provided a copy of the letter to Mr. Navarro. Throughout March, April, and May 2000, Mr. Navarro was experiencing problems with his back, and he was able to work only when he took pain medication, which made him feel drowsy and lethargic. Mr. Navarro visited Dr. Bogani often as a result of the pain, and he always provided to Ms. Gragg Dr. Bogani's medical certifications for his absences.9 Mr. Navarro was also becoming increasingly distraught because of what he considered Ms. Gragg's unfair criticisms of his job performance and her apparent inability to understand the extent of his medical problems. He was particularly affected by his unsatisfactory annual evaluation because he had received satisfactory evaluations since he began working for the School Board. On June 5, 2000, Mr. Mendez, the attorney handling Mr. Navarro's workers' compensation claim, contacted the School Board's workers' compensation administrator on Mr. Navarro's behalf and requested that Dr. James B. Phillips be assigned as Mr. Navarro's gatekeeper. An appointment was arranged for Mr. Navarro with Dr. Phillips for June 8, 2000. Mr. Navarro advised Ms. McIntyre that he would be absent on June 8, 2000, for a doctor's appointment.10 Ms. McIntyre asked that Mr. Navarro complete a "Leave/Temporary Duty Elsewhere" form requesting leave for June 8, 2000, and he refused; this form is a School Board form that must be completed before an employee can be approved for any type of leave. Ms. Gragg sent Mr. Navarro a memorandum dated June 7, 2000, in which she directed him to submit a completed leave form to her "today" and advised him that failure to do so would be considered insubordination and would subject him to discipline. Mr. Navarro submitted a leave form dated June 7, 2000, but he did not indicate on the form the type of leave he requested or the amount of time he would be absent. Ms. Gragg disapproved the request on June 7, 2000, with the notation "Incomplete TDE." Mr. Navarro gave no explanation for his failure to fill out the leave request form completely. Dr. Phillips first saw Mr. Navarro on June 8, 2000, and Mr. Navarro explained to Dr. Phillips that he had injured his back on the job on January 22, 1999. Dr. Phillips did several tests and diagnosed Mr. Navarro as having a "lumbosacral sprain, chronic," but also noted that Mr. Navarro most likely magnified the symptoms of his back injury. Dr. Phillips also recommended that Mr. Navarro have a MRI. Dr. Phillips completed a Workers' Compensation Work Status Report in which he indicated that Mr. Navarro could do light-duty work with the restrictions that he was not to use a vacuum cleaner or to lift more than 15 pounds. Dr. Phillips directed Mr. Navarro to give the form to his supervisor at work. On June 9, 2000, Mr. Navarro took this form to Ms. Gragg's office at Taylor/Kirklane Elementary. At approximately 10:15 a.m., Ms. McIntyre called Linda Meyer, a claims technician for the School Board's workers' compensation program, and advised her that Dr. Phillips had placed Mr. Navarro on light-duty restrictions and that there were no such assignments available at the school. One of Ms. Meyer's responsibilities is to find light-duty placements for School Board employees injured on the job who cannot return to their jobs because of work restrictions imposed by a doctor participating in the School Board's workers' compensation program. Ms. Meyer told Ms. McIntyre to send Mr. Navarro to her office immediately, and Ms. Meyer asked Ms. McIntyre to send Mr. Navarro's work restrictions to her by facsimile. Ms. Meyer found a light duty job for Mr. Navarro that met his work restrictions. Mr. Navarro was to work with the medical records clerk in the School Board's Risk Management office, Sheila Rick; the job required Mr. Navarro to sit at a table, take medical records out of files, count the documents, and return them to the files. Ms. Riczko speaks fluent Spanish, and it would not have been necessary for Mr. Navarro to speak or read English to do this job. Dr. Phillips is of the opinion that Mr. Navarro would have had no physical problem doing this work. When Mr. Navarro had not reported to her office by noon on June 9, 2000, Ms. Meyer telephoned Ms. McIntyre to confirm that Mr. Navarro had been told where to report for his assignment; Ms. McIntyre told Ms. Meyer that Mr. Navarro had left Taylor/Kirklane Elementary at approximately 10:45 a.m. Shortly after noon, Ms. Meyer received a telephone call from Carolyn Killings, Mr. Navarro's union representative, asking about Mr. Navarro's light-duty work assignment. Ms. Killings told Ms. Meyer that Mr. Navarro was in her office; Ms. Meyer told Ms. Killings to tell Mr. Navarro that she had a light-duty work assignment for him and that he was to report to her office. Mr. Navarro did not report to Ms. Meyer's office on June 9, 2000. Ms. Meyer prepared a letter advising Mr. Navarro that he was to report for his temporary light-duty work assignment, and the letter was prepared in both an English version and a Spanish version. In the letter, Ms. Meyer told Mr. Navarro where to report and confirmed that the assignment satisfied the restrictions imposed by Dr. Phillips on June 8, 2000, that he not lift anything weighing more that 15 pounds and that he do no vacuuming. Ms. Meyer further advised Mr. Navarro in this letter that failure to report for this assignment might result in termination of his workers' compensation benefits and in disciplinary action by the School Board, including termination of employment. Ms. Meyer also attached a light-duty sign-in sheet and directed Mr. Navarro to complete the sheet each day. Also on June 9, 2000, after Mr. Navarro had presented to Ms. McIntyre the work restrictions imposed on June 8, 2000, by Dr. Phillips, Ms. Gragg prepared a Written Letter of Reprimand for actions involving repeated insubordination. Specifically, Ms. Gragg reprimanded Mr. Navarro because he left campus at his regular break time of 10:00 a.m. but did not return until 10:45 a.m., with a sandwich.11 Ms. Gragg noted in the letter that she had questioned Mr. Navarro as to why he returned to campus past the end of his break time and how he intended to eat and do his work at the same time. According to the letter, Mr. Navarro explained that he was hungry and had to eat. Ms. Gragg referred in the letter to Mr. Navarro's failure to heed her warning on June 8, 2000, to correct his actions, and she advised Mr. Navarro that she was referring the matter for a "District review" with respect to the next step in the disciplinary process.12 A handwritten note at the bottom of the letter states that Ms. McIntyre "verbally interpreted" the letter into Spanish for Mr. Navarro. Ms. Gragg followed up her June 9, 2000, Written Reprimand with a letter dated June 12, 2000, to the Director of the School Board's Employee Relations Department. In the letter, Ms. Gragg stated: "I have issued a Written Reprimand and the employee has repeated the misconduct. Therefore, I am requesting a District review for the purpose of determining the next step in the discipline process." Ms. Gragg also noted in the June 12, 2000, letter that Mr. Navarro had not reported to the Risk Management office for light duty or to Taylor/Kirklane Elementary for regular duty. Ms. Gragg also telephoned a complaint regarding Mr. Navarro to the School Board's Office of Professional Standards on June 13, 2000. Ms. Gragg charged Mr. Navarro with unauthorized absence and insubordination, based specifically on his refusal on June 7, 2000, to complete a leave form for his doctor's appointment on June 8, 2000, and on Mr. Navarro's failure to respond to her directive on June 9, 2000, that he report to Ms. Meyer's office for a light-duty work assignment. In a letter dated June 15, 2000, Ms. Gragg advised Mr. Navarro that she was concerned that he had not reported to Ms. Meyer's office for his light-duty work assignment or to Taylor/Kirklane Elementary. She asked that Mr. Navarro call her office regarding these absences. This letter was prepared in both an English version and a Spanish version. On June 15, 2000, Ms. Meyer asked Ms. Riczko to telephone Mr. Navarro's home to ask why he had not reported for his light-duty assignment. Ms. Riczko spoke with Mrs. Navarro, who said that Mr. Navarro would be in on Monday, June 19, 2000. On June 19, 2000, Mrs. Navarro telephoned Ms. Riczko and told here that Mr. Navarro had an appointment with his attorney and would not be reporting for his work assignment that day. Mr. Navarro did, however, report to Ms. Meyer's office late in the day on June 19, 2000. Mr. Navarro told Ms. Meyer that he could not work because of the medication he was taking. Ms. Meyer advised Mr. Navarro that he was to have reported for his light-duty work assignment on June 9, 2000, and that, by refusing the light-duty work, he was jeopardizing his workers' compensation benefits. Ms. Meyer suggested that Mr. Navarro talk to someone in Ernie Camerino's office about taking an extended medical leave. Mr. Camerino's office is responsible for processing retirements and leaves of absence for the School Board. Mr. Navarro picked up a set of leave forms from Mr. Camerino's office on June 19, 2000. On June 20, 1999, Mr. Navarro visited Dr. Phillips' office and requested that Dr. Phillips authorize him to take two weeks off of work. Dr. Phillips refused and again advised Mr. Navarro that he could return to light-duty work. Mr. Navarro submitted a Request for Leave of Absence Without Pay to Ms. Gragg on June 22, 2000, in which he asked for personal leave from June 9, 2000, to July 9, 2000. Ms. Gragg denied Mr. Navarro's request in a letter dated June 22, 2000, which was prepared in both an English and a Spanish version. The reasons given by Ms. Gragg for her refusal to approve Mr. Navarro's leave request were as follows: (1) Mr. Navarro did not request the leave in advance; (2) the leave request form was submitted on June 22, 2000, for leave extending from June 9, 2000, to July 9, 2000, and she could not backdate a personal leave request; and (3) Mr. Navarro did not discuss or provide proper documentation on his leave form. Finally, in the June 22, 2000, letter, Ms. Gragg directed Mr. Navarro to report for work on June 26, 2000. Mr. Navarro wrote a letter to Ms. Gragg dated July 26, 2000, in which he explained that he requested personal leave because he did not feel emotionally stable as a result of his problems and that his personal doctor, Dr. Bogani, had given him documents that showed he approved the leave. Mr. Navarro also advised Ms. Gragg that he was scheduled to have an MRI on June 28, 2000,13 and would receive treatment for his back, depending on the results of the test. Mr. Navarro reminded Ms. Gragg that she had prohibited him from bringing his medication to school and that it was the only medication he took, and that it helped him work "almost normal." The contents of this letter had no effect on Ms. Gragg's decision to deny Mr. Navarro's request for leave without pay. Mr. Navarro's MRI was completed on July 9, 2000, and, on July 10, 2000, Dr. Phillips went over the results with Mr. Navarro. The MRI showed that Mr. Navarro had a disc herniation at L5-S1, which displaced the S1 nerve posteriorally, with severe right foraminal narrowing. In Dr. Phillips' opinion, Mr. Navarro had a serious problem with his back, and he modified Mr. Navarro's work restrictions to provide that he could not lift anything weighing more than 10 pounds. In a letter dated July 10, 2000, sent to Mr. Navarro by certified mail and in both an English and a Spanish version, Ms. Meyer noted that he had not yet reported for his light-duty work assignment, and she reiterated the penalties that could be imposed for his failure to report. On July 14, 2000, Ms. Meyer sent another letter to Mr. Navarro, by certified mail and in both an English version and a Spanish version, advising him that he had been scheduled to report for his light-duty work assignment on June 9, 2000, that he had not done so, and that the missed days would not be approved as related to his workers' compensation claim. Ms. Meyer again urged Mr. Navarro to report for work immediately. Mrs. Navarro telephoned Ms. Meyer's office on July 19, 2000, and spoke with Ms. Riczko about Mr. Navarro's light-duty work assignment. Ms. Riczko told Mrs. Navarro that Mr. Navarro must report to Ms. Meyer's office the next morning at 8:00 a.m. to start his work assignment. Mrs. Navarro said that she would tell her husband. Mr. Navarro reported to Ms. Meyer's office at 8:45 a.m. on July 20, 2000; his wife accompanied him. Mr. Navarro told Ms. Meyer and Ms. Riczko, who was acting as interpreter, that he was not able to work because he was taking pills that made him very lethargic and sleepy. He said that he intended to call Dr. Phillips and ask for a different type of pain medication. Ms. Meyer advised Mr. Navarro that it might be best for him to ask for a leave of absence; Ms. Meyer reiterated that he must report for his light-duty assignment if he did not get approved for a leave of absence. Mr. Navarro was told to report at 8:00 a.m. on July 24, 2000, for his light-duty work assignment. He telephoned at 8:45 a.m. and advised Ms. Riczko that he had taken his wife to the hospital emergency room and needed to stay with her. Ms. Riczko heard nothing further from Mr. Navarro, and he never reported to her office for the light-duty work assignment. After reviewing the results of Mr. Navarro's MRI, Dr. Phillips had requested that Mr. Navarro be examined by a neurosurgeon, and, on August 16, 2000, Dr. Brodner examined Mr. Navarro. Dr. Brodner advised Mr. Navarro that he needed surgery on his back and that there was a 20-percent chance that the surgery would cause paralysis in his legs. As of the date of the hearing, Mr. Navarro had refused the surgery because of this risk. Meanwhile, School Board personnel investigated the allegations made by Ms. Gragg in her telephoned complaint of June 13, 2000, and a report of the investigation was submitted to the School Board's Case Management Review Committee for a determination of probable cause. The committee found probable cause at a meeting held on July 23, 2000, and recommended that Mr. Navarro be terminated from his employment with the School Board. Paul LaChance, the Director of the School Board's Office of Professional Standards, arranged to meet with Mr. Navarro on August 15, 2000, in order to go over the investigation report and the committee's recommendation and to allow Mr. Navarro the opportunity to respond to the charges against him. Mr. Navarro presented Mr. LaChance with a letter written in Spanish, which was later translated into English for Mr. LaChance, in which he offered his explanation for his absences and his version of the events leading up to Ms. Gragg's complaint and the events relating to his failure to report for his light-duty work assignment. Mr. LaChance reviewed Mr. Navarro's letter and requested that Ms. Gragg respond to certain allegations against her that Mr. Navarro had included in the letter. After reviewing Ms. Gragg's response to Mr. Navarro's letter, Mr. LaChance recommended that Mr. Navarro be suspended without pay and that his employment with the School Board be terminated. In a document entitled "Notice of Suspension and Recommendation for Termination of Employment," dated September 8, 2000, and signed by Dr. Marlin, Mr. Navarro was notified that Dr. Marlin would recommend to the School Board that it terminate Mr. Navarro's employment at its September 20, 2000, meeting. The School Board approved Dr. Marlin's recommendation and immediately suspended Mr. Navarro without pay. Mr. Navarro believed that he was not physically or emotionally able to do even light-duty work, and the School Board's records show that Mr. Navarro did not report for either regular work or his light-duty work assignment from June 9, 2000, through September 20, 2000, when he was suspended from his employment. Summary The evidence presented by the School Board is not sufficient to establish with the requisite degree of certainty that Mr. Navarro abused his sick leave privileges. The School Board did not present any evidence to establish that Mr. Navarro was absent for reasons other than medical reasons, and, indeed, the School Board classified Mr. Navarro's absences almost exclusively as sick leave, sick leave charged to annual leave, or sick leave charged to "without pay." There is no question that Mr. Navarro used his sick leave as he earned it, and Ms. Gragg was justified when she directed Mr. Navarro in the March 13, 2000, Verbal Reprimand With a Written Notation to provide medical certifications for any future absences. Mr. Navarro submitted such certifications from Dr. Bogani for most of his absences subsequent to March 13, 2000, although he did not provide medical certifications for his absences on April 5, 6, and 7, 2000; for 4 hours on April 27, 2000; or for five hours on May 22 and May 25, 2000. These lapses are not sufficient to support a finding that Mr. Navarro abused his sick leave privileges, and there is no evidence to establish that Ms. Gragg advised Mr. Navarro that the certifications were insufficient or advised him that he had failed to provide the certifications timely. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Navarro was willfully absent from duty without leave from June 9, 2000, until September 20, 2000, when the School Board suspended him and termination proceedings were initiated. Ms. Meyer advised Mr. Navarro of his obligation to report or face possible disciplinary action in her letter dated June 9, 2000, which was sent to Mr. Navarro in both an English and a Spanish version. Mr. Navarro was repeatedly directed to report for work by Ms. Gragg and Ms. Meyer, both verbally and in writing, and he advised that his failure to report for his light-duty work assignment would jeopardize both his workers' compensation benefits and his employment with the School Board. Credence is given to Mr. Navarro's belief that he was emotionally and physically unable to work subsequent to June 8, 2000, but he failed to explain why he did not apply for a leave of absence until June 22, 2000. Ms. Gragg had advised him to inquire about his eligibility for leave in her reprimand letter of March 13, 2000, and Ms. Meyer urged him to talk with Mr. Camerino's office regarding a leave of absence on several occasions. Mr. Navarro did not apply for personal leave without pay until June 22, 2000, and he requested leave from June 9, 2000, through July 9, 2000. When Ms. Gragg denied the leave, Mr. Navarro did not file a grievance pursuant to the Union Contract, he simply did not report for work. Mr. Navarro was aware of the consequences of his failure to pursue his leave request or to report for work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension without pay of Miguel Navarro and terminating his employment with the School Board. DONE AND ENTERED this 22nd day of August, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2001.
The Issue Whether Respondent committed the actions set forth in the Notice of Charge of Misconduct in Office, dated December 18, 2013, and if so, whether these actions constitute just cause for suspension.
Findings Of Fact The Walton County School Board (School Board) is charged with the responsibility to operate, control, and supervise the public schools within the School District of Walton County, Florida. During the 2013-2014 school year, Ms. Harriet Hurley was a teacher at Walton Middle School. Ms. Hurley had earlier been a teacher in Georgia for eight years, had been employed in Walton County Schools in 1984 for a period of three years, and taught in Okaloosa County Schools for five years. She then returned to Walton County Schools where she has been ever since, for a career of over 30 years. In addition to her responsibilities as a teacher at Walton Middle School, Ms. Hurley assists in scheduling parent- teacher conferences for students at Walton Middle School. Ms. Hurley’s responsibilities in scheduling conferences are limited to a coordination function. She is not responsible for addressing the substance of the issues to be addressed in the conferences or becoming involved in attempting to resolve them. Principal Hope never asked Ms. Hurley to assume a role as a guidance counselor. Ms. Hurley is employed by the School Board. As a member of the School Board’s instructional staff, Ms. Hurley’s employment is subject to section 1012.33, Florida Statutes (2013), which provides that her employment will not be suspended or terminated except for “just cause.” As a teacher, Ms. Hurley is required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures of the School Board of Walton County, Florida. Ms. Hurley is not the legal guardian of her granddaughter, B.C., who is a student at Walton Middle School. On November 20, 2013, Ms. Hurley’s granddaughter, B.C., approached her in the adult dining area about a group math assignment that was upsetting her. B.C. told Ms. Hurley that she had been told by her sixth-grade math teacher, Ms. Black, that her “high grade was gone” because of the failure of her group to complete a group math assignment. B.C. told Ms. Hurley that she blamed S.A., another student in her group, for their failure to complete the work. Ms. Hurley immediately left the adult dining area with her lunch only partially eaten and went with B.C. back to Ms. Black’s classroom. B.C. had been released for lunch a few minutes before the other students because she was an A/B Honor Roll student, so the other students were still in the classroom when Ms. Hurley arrived there. When Ms. Hurley and B.C. arrived at the classroom, the students were packing up their personal items in preparation for their release for lunch. Ms. Black testified in part: At that time, I think it was because the students leave five minutes early, A/B honor roll students. I don’t really want to go ahead and teach them anything, because they’re missing that opportunity to learn. At that time I get them to pack up and get their things together to leave for lunch. There was a high level of noise in the classroom. Ms. Black, in her first year as a teacher, was at her desk trying to help some students who did not understand something, and was in a verbal altercation with S.A., who was walking away from her. On November 20, 2013, S.A. was not a student in one of Ms. Hurley’s classes. Ms. Hurley addressed S.A., telling him that he should not talk to his teacher that way. Ms. Hurley told S.A. to “come here to me.” She was upset with S.A. and told him that he needed to stop playing around. In a loud and forceful tone of voice, she told him that he was not going to be the cause of a “straight A” student getting a bad grade and that he needed to concentrate on his schoolwork. She told him that she knew his mother, who worked at a KFC-Taco Bell restaurant in Miramar Beach, and that she would talk to his mother if necessary. S.A. denied that his mother worked at KFC, and Ms. Hurley restated that she knew that his mother did. The other students in the class heard Ms. Hurley’s disparagement and public discipline of S.A. The bell rang and Ms. Hurley and the students began to leave the classroom. S.A. was embarrassed and upset by the incident. Due to the fact that the students were already packing up their things to leave, and because Ms. Black had been in a verbal altercation with S.A., the actions of Ms. Hurley in Ms. Black’s class did not disrupt the students’ learning environment. Ms. Hurley’s actions were unnecessary. She might have comforted B.C., and encouraged B.C. and her parents to pursue the issue with Ms. Black. S.A. was not one of Ms. Hurley’s students and at the time she decided to go to Ms. Black’s class Ms. Hurley had not directly witnessed any behavior by S.A. that called for immediate correction. Even had it been appropriate for Respondent herself to take action based upon her granddaughter’s information, there was no emergency which required that Ms. Hurley intrude upon a colleague’s class and loudly berate S.A. in front of other students. She used her institutional privileges as a teacher to gain access to Ms. Black’s classroom in order to assist her granddaughter. As Ms. Black was leaving her classroom, she saw that S.A. was reluctantly moving toward the door and she noticed he was crying. She attempted to comfort him. Ms. Black then reported the incident to Mr. Jason Campbell, Assistant Principal, who was in the student lunch room. A few minutes later, S.A. also approached Mr. Campbell to report his version of the incident. Ms. Hurley returned to her lunch in the adult dining room. When Ms. Black came in to the dining room later, Ms. Hurley apologized to her for coming into her classroom. That evening, Ms. Hurley drove to Miramar Beach and went to dinner at the fast food restaurant where she knew Ms. A. worked. Ms. Hurley was one of Ms. A’s teachers when Ms. A. had been in the seventh grade, and the two were casual acquaintances. Ms. Hurley told Ms. A. what had happened that morning with S.A. and B.C. in their math group. Ms. Hurley told Ms. A. that she had “kind of stepped out and went into grandma mode” and had “gotten onto” (disciplined) S.A. Ms. Hurley relayed that she had told S.A. that she knew his mother and that if he did not improve his conduct, she was going to let his mother know about his behavior. During the course of the conversation, Ms. A. relayed that she was concerned about an incident involving a damaged globe from Mr. Price’s classroom, which was S.A.’s SPEAR classroom (“home room”). The following day, on November 21, 2013, Ms. Hurley removed S.A. from his first-period classroom. Neither Principal Hope nor Vice Principal Campbell authorized Ms. Hurley to remove S.A. from his first-period classroom on November 21, 2013. On November 21, 2013, Ms. Hurley contacted S.A.’s mother on the telephone on her own initiative and without the authority of Principal Hope or Vice Principal Campbell. Ms. Hurley called Ms. A. on the telephone with S.A. present. Ms. Hurley and Ms. A. talked about the incident involving S.A. and the damaged globe from Mr. Price’s classroom. The telephone conversation had barely begun when Mr. Hope, upon learning that Ms. Hurley had gone to S.A.’s classroom and removed him from class, came into Ms. Hurley’s room and took S.A. back to Mr. Hope’s office. While the School Board alleged that Ms. Hurley and Ms. A. discussed the incident that happened in Ms. Black’s classroom the day before, this was not shown by the evidence. The allegation that Ms. Hurley was misusing her institutional privileges by engaging in the phone call may be correct, for Ms. Hurley was not authorized to discuss the substance of parent/teacher conferences, but was instead limited to scheduling responsibilities. The evidence did not show that the phone conversation was conducted for personal gain or advantage to Ms. Hurley, however. The School Board’s further argument that Ms. Hurley’s actions on November 21, 2013, reduced the ability of Principal Hope to efficiently perform his duties is also rejected. Assuming that Principal Hope could even be considered a “colleague” of Ms. Hurley’s, the evidence showed that he was able to efficiently “track down” S.A. with minimal effort. To the extent that Ms. Hurley’s actions on November 21, 2013, exceeded her “job description,” they could be corrected with a simple directive or memorandum, and in the absence of evidence that her actions were taken for her personal gain, they are not a just cause for discipline. Statements were taken from several students in Ms. Black’s math class regarding the incident on November 20th, which vary in detail, but taken as a whole corroborate the findings of fact above regarding the incident on November 20, 2013. No statement was taken from B.C., and neither party called B.C. as a witness at hearing. On December 2, 2013, Ms. Hurley met with Walton Middle School administration to discuss the events of November 20 and November 21, 2013. On December 17, 2013, Principal Tripp Hope issued a letter of reprimand advising Respondent that he would be recommending a 10-day suspension without pay to the Superintendent. On December 18, 2013, the Superintendent notified Respondent of her intention to recommend a 10-day suspension without pay. A Notice of Charge of Misconduct in Office, dated December 18, 2013, notified Respondent of the Petitioner’s intent to suspend her employment for 10 days without pay. (As stipulated by the parties.) Although the Notice of Charge of Misconduct in Office did not explicitly identify all rules that Ms. Hurley was charged with violating, the allegations of more specific rule violations were included in the Letter of Reprimand which was attached to the charge. Ms. Hurley was not prejudiced or hindered in the preparation of her defense by any lack of specificity in the charging documents. Ms. Hurley is substantially affected by the intended action of the School Board to suspend her employment without pay for ten days. The evidence did not show that Ms. Hurley failed to “value” the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, or the nurture of democratic citizenship. The evidence did not show that Ms. Hurley did not strive for professional growth or did not “seek” to exercise the best professional judgment or integrity. The evidence did not show that Ms. Hurley did not “strive” to achieve or sustain the highest degree of ethical conduct. The evidence showed that by entering S.A.’s classroom and raising her voice in anger towards him in the presence of other students, Ms. Hurley failed to make reasonable effort to protect S.A. from conditions harmful to his learning or to his mental health. The evidence showed that any required discipline of S.A. should not have been administered by Ms. Hurley and so her actions were unnecessary. Her actions, which reduced S.A. to tears, exposed him to unnecessary embarrassment and disparagement. The evidence showed that in entering another teacher’s classroom to assist her granddaughter by disciplining S.A. when he was not even one of her students, Ms. Hurley used institutional privileges for personal gain or advantage. The evidence did not show that Ms. Hurley lacked integrity, high ideals, or human understanding or that she failed to “maintain or promote” those qualities. The evidence did not show that in entering Ms. Black’s classroom during the final minutes of the class, when the students were already packing up their things and preparing to go to lunch, Ms. Hurley engaged in behavior that disrupted the students’ learning environment. The evidence did not show that Ms. Hurley engaged in behavior that reduced her ability or her colleague’s ability to effectively perform duties. One might speculate as to whether Ms. Black’s ability to maintain control over her class in the future was undermined by Ms. Hurley’s aggressive intrusion, but Ms. Black did not testify that her ability to effectively perform was reduced and this was not otherwise shown. There was similarly no evidence offered to indicate that Ms. Hurley’s own effectiveness was reduced. Her actions were not taken in her own classroom, there was no evidence that she had any of Ms. Black’s students in her classes, or that her own students or the student body generally was even aware of her actions. The actions of Ms. Hurley on November 20, 2013, constitute misconduct in office. Her actions are just cause for suspension of her employment without pay. The School Board witnesses conceded that Ms. Hurley has never received “formal” counseling, and presented no documentary evidence that she had been counseled even informally. The School Board did present credible testimony from Principal Hope and Assistant Principal Campbell that Ms. Hurley had been informally counseled regarding raising her voice with students and for communication with her peers. The actions of Ms. Hurley on November 20, 2013, were not so serious as to justify a ten-day suspension, but do warrant suspension without pay for three calendar days.
The Issue The issues to be determined in this proceeding are whether St. Lucie County School Board (School Board) Rules 6.16 and 6.50*+ are invalid exercises in delegated legislative authority as defined by sections 120.52(8)(c), (d), and (e).
Findings Of Fact Ms. Jones is currently an employee of the St. Lucie County School Board, and has a professional service contract pursuant to section 1012.33, Florida Statutes. Her status with the School Board is “suspended without pay,” for reasons that are not relevant to this proceeding. As a classroom teacher, Ms. Jones is covered by the Collective Bargaining Agreement between the School Board of St. Lucie County and the Classroom Teachers Association. On June 13, 2017, the School Board suspended Ms. Jones without pay and on July 27, 2017, a Petition for Termination in Termination I was referred to the Division of Administrative Hearings for an evidentiary hearing. At that point, while Ms. Jones remained an employee of the School Board, she received no pay and no benefits from the School District. She began to look for other employment to support herself and her family. Ms. Jones applied to and was offered a job to work as a music teacher by the Somerset Academy St. Lucie (Somerset). Somerset is a charter school in St. Lucie County sponsored by and located within the geographical bounds of the School District and the jurisdictional bounds of the School Board. Ms. Jones did not submit an application for leave and the School Board did not approve a request for leave of absence in order for Ms. Jones to work at Somerset. By letter dated August 28, 2017, Superintendent Gent notified Ms. Jones of his intent to recommended to the School Board that she be terminated for grounds in addition to the already-existing suspension, i.e., for violating the School Board’s Rules 6.16(1); 6.301(2), (3)(b)(i), (3)(b)(xix), and (3)(b)(xxix); and 6.50*+. That letter became the basis for the Termination II proceeding. The factual basis for pursuing the second termination proceeding was that Ms. Jones was working at Somerset without having applied for and received approval for a leave of absence from the School Board. The merits of the School Board’s allegations in this second proceeding are no longer relevant in terms of Ms. Jones’ employment with the School Board, as the School Board, through counsel, has represented that the School Board no longer intends to pursue the allegations in Termination II. The allegations are relevant and informative, however, in establishing the School Board’s interpretation of its rules and establishing Ms. Jones’ standing to challenge the validity of those rules. The evidence presented at hearing established that Ms. Jones has standing to bring this rule challenge. School Board rule 6.16 is entitled “Dual employment,” and provides as follows: No person may be employed to work in more than one position in the school system except upon the recommendation of the Superintendent and approval of the School Board. No employee shall accept other employment that might impair the independence of his or her judgment in the performance of his or her duties. Rule 6.16 lists as its statutory authority sections 1001.41, 1012.22, and 1012.33, Florida Statutes, and lists sections 1001.43 and 1012.22 as the laws implemented. No reference to authority granted by the Florida Constitution is identified. School Board Policy 6.50*+ is entitled “Leave of Absence,” and provides in pertinent part: Leave of absence. A leave of absence is permission granted by the School Board or allowed under its adopted policies for an employee to be absent from duty for a specified period of time with the right to return to employment upon the expiration of leave. Any absence of a member of the staff from duty shall be covered by leave duly authorized and granted. Leave shall be officially granted in advance and shall be used for the purposes set forth in the leave application. Leave for sickness or other emergencies may be deemed to be granted in advance if prompt report is made to the proper authority. Length of Leave and Pay. Generally, no leave or combination of leaves, except military leave or Workers’ Compensation Leave, will be granted for a period in excess of one year. Illness-in-line-of- duty leave may not be extended beyond the maximum medical improvement date or a maximum of two (2) years from the date of injury, whichever is the earliest date. Leave may be with or without pay as provided by law, regulations of the State Board, and these rules. For any absence that is without pay, the deduction for each day of absence shall be determined by dividing the annual salary by the number of days/hours for the employment period. Employment leave. A leave shall not be granted to any employee to accept other employment unless the leave is to accept employment at a charter school as provided in paragraph (5) below. Accepting employment while on a leave of absence cancels the leave automatically. The person on leave will be notified that he or she must return to work with the School Board immediately, resign or be terminated. The Superintendent shall develop procedures to implement leave provisions. Charter School Leave. An employee may be granted leave to accept employment at a charter school in St. Lucie County in accordance with the following provisions: Teachers. Teachers may apply for leave to work at a charter school. The School Board will not require resignation of teachers desiring to work at a charter school. Teachers granted such leave by the School Board are not required to be on a continuing or professional services contract and shall not be subject to the seven (7) continuous years’ service requirement. Should a teacher on leave elect to return to work at the District, the teacher shall return to the teacher’s former position or a comparable position for which the teacher is qualified. * * * Method to Request Leave. An application to request leave to accept employment in a charter school shall be submitted using the procedures specified in Policy 6.501(1). For ten month instructional personnel, an application to request leave to accept employment at a charter school shall be submitted to the principal at least forty-five (45) days prior to the first day of work for the school year . . . . Insurance and Retirement Benefits. It shall be the sole responsibility of the charter school site to provide insurance and retirement benefits to charter school employees . . . . * * * Notice of Intent to Return. Employees on charter school leave shall give the School Board written notice of their intent to return at least sixty (60) days prior to the beginning of the semester they wish to return. Requirement for Annual Renewal. Charter school leave must be renewed annually. It is the sole responsibility of the employee on leave to submit an annual written letter notice of leave to the Superintendent or designee, and a copy of the annual written letter notice of leave to the employee’s school principal or immediate supervisor, as applicable, on or before April 1 of each year if they wish to renew their charter school leave for the following school year. Employees who do not submit the required annual leave form on or before April 1st will be considered to have voluntarily terminated their employment, and will no longer be eligible for any benefits or other consideration under this leave policy. (Emphasis supplied.) 11. Rule 6.50*+ lists sections 1001.41, 1012.22, and 1012.33 as its statutory authority, and lists sections 1001.43, 1002.33(12)(e), 1012.22, 1012.61, 1012.63, and 1012.66 as the laws it implements. No reference to authority granted by the Florida Constitution is identified. Rule 6.50*+ provides that if a teacher working for the School Board wishes to work at a charter school within St. Lucie County, that teacher must apply for permission to do so. However, the definition of a leave of absence in the first paragraph of rule 6.50*+ specifically provides that a leave of absence allowed under the rule is for a specified period of time “with the right to return to employment upon the expiration of leave.” By its terms, the rule does not appear to encompass those employees whose status is “suspended without pay,” given that those employees who are suspended without pay do not necessarily have the right to return to employment upon expiration of leave. Rule 6.50*+ also provides that an application for charter school leave shall be provided to the teacher’s principal at least 45 days before the beginning of the school year. For teachers on suspension without pay or who are not assigned to a particular school, there is no principal to whom the application can be given. The rule does not specify an alternative. Instead, Mr. Clements stated that it would be up to Ms. Jones (and presumably, anyone in her circumstance) to ask where to submit an application for charter school leave. The School Board interprets rule 6.50*+ as applying to all employees, regardless of their status. Rule 6.50*+ does not indicate what criteria would be used for determining if an employee’s application for leave should be granted. Mr. Clements testified that the decision is made on a case-by-case basis. He also testified that had Ms. Jones applied for charter school leave, he would not have recommended that her request be approved, because as a teacher on unpaid suspension, she is not in good standing with the School District. Nothing in rule 6.50*+ alerts Ms. Jones, or any other teacher in her circumstances, that her suspension without pay would be a basis for disapproval of an application for charter school leave. Nothing in the rule alerts any applicant of the criteria to be considered for the grant or denial of a requested leave of absence. The consideration of a staff member’s current disciplinary status is not an unreasonable consideration for the Superintendent or for the School District. It is not, however, included in the rule as a basis for deciding whether a request for charter school leave should be approved or denied.
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent, a Behavior Management Teacher (BMT), due to Respondent's inappropriate interaction with a student on April 16, 2014, as alleged in the Amended Notice of Specific Charges.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within Miami-Dade County, Florida, pursuant to article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a BMT at Allapattah Middle School (Allapattah), a public school in Miami-Dade County, Florida. Respondent has been employed by the School Board for approximately 14 years pursuant to a professional service contract and subject to Florida Statutes, the regulations issued by the Florida State Board of Education, the policies and procedures of the School Board, and the provisions of the collective bargaining agreement in effect between Miami-Dade Public Schools and United Teachers of Dade (UTD contract). During his employment with the school district, Respondent took a break from teaching to attend divinity school. He became a permanent teacher in 2007 and worked in Miami Senior High School. Respondent transferred to Allapattah in 2011 at the request of its assistant principal. During the 2011-2012 school year, Respondent served as a SPED reading, language arts, and math teacher. During the 2012-2013 school year, Respondent held dual roles as the SPED Chair and a SPED teacher. In November 2013, Respondent was offered and accepted the position of BMT at Allapattah. The BMT is considered the "first in line" to deal with a student who causes a disturbance in the classroom by behavior such as cursing or fighting. If called by a teacher to assist or a BMT observes a student acting out in such a way as to disrupt a classroom, the BMT intervenes to try and get both sides of the story regarding why the student is upset and tries to redirect or modify the student's behavior so that the student can remain in the classroom. If that is unsuccessful, the BMT removes the student to a special education classroom where the BMT uses other techniques, such as discussing respect, to calm the student. The BMT may also recommend an in- school or out-of-school suspension. Respondent was in a graduate program for guidance counseling when offered the BMT position. He accepted the position because he felt the BMT role would help him better understand the student population with emotional/behavioral disorders (EBDs). As the BMT, Respondent was assigned 30 students with severe behavioral issues. Respondent also continued some duties of the SPED Chair position until February 2014. Respondent received uniformly satisfactory performance evaluations throughout his teaching career with Petitioner. He was not previously counseled or disciplined for any reason. On April 16, 2014, Towanda Seabrook, the SPED Chairperson, entered a seventh-grade classroom for observation and saw two students being disruptive. N.H. was cursing the classroom teacher, and D.J. was talking with other students. Ms. Seabrook directed these students to leave the classroom and go with her to the SPED office/classroom. The SPED office/classroom is in Allapattah's classroom 1165. It is a large room with several work stations and a conference table that are used by the EBD counselors, teachers, and the BMT. Attached and opening into the SPED office/classroom are the offices of the SPED Chairperson and EBD counselors. After going with Ms. Seabrook to the SPED classroom, N.H. directed his profanity and ranting at Ms. Seabrook calling her a "motherfucker," "whore," and "bitch" and repeatedly saying "fuck you" to her. Ms. Seabrook attempted to defuse the situation by explaining that she is a mother and asking N.H. how would he like it if someone said these types of graphic things to his mother. Ms. Seabrook chose not to go "toe to toe" with N.H. because she was aware that his exceptionality, EBD, causes him to be unable to control his emotions and temper. N.H. is known to curse and use profanity directed at teachers. Despite N.H.'s continued use of graphic language, Ms. Seabrook felt she had the situation under control and attempted to complete some SPED paperwork. Respondent entered the classroom and heard N.H.'s barrage of profanity and aggression directed at Ms. Seabrook. Respondent was familiar with N.H. due to N.H.'s history of being disrespectful to teachers, running out of class, name calling, defiance, and fighting. Respondent worked with N.H. on an almost daily basis attempting to help N.H. stay in school and modify his behavior to facilitate learning. Respondent described N.H. as one of the most difficult students with whom he was assigned to work. Because the BMT is supposed to be the first line of response to a belligerent and disruptive EBD student, Respondent immediately tried to diffuse the situation by reasoning with N.H. N.H. proceeded to call Respondent (an African-American male) "Nigger," "Ho" (whore), "pussy," "punk," and repeatedly said "fuck you." This tirade by N.H. went on for almost 45 minutes. During this time, N.H. and D.J. sat at the conference table in the classroom. Throughout the 2013-2014 school year, Respondent had tried numerous strategies to assist N.H. in controlling his behavior and temper at school-–all with no success. On April 16, 2014, after listening to N.H. verbally abuse Ms. Seabrook and himself, Respondent decided to use an unorthodox strategy to get N.H. to understand the gravity of his words and to calm down. Respondent asked N.H. if he knew what "fucking" means. N.H. responded "a dick inside a pussy." Respondent replied, "A dick inside a pussy? Maybe if you were fucking you wouldn't behave this way," implying that if N.H. was having sex, perhaps he would be better able to control his emotions at school. Ms. Seabrook overheard this portion of the conversation and it made her uncomfortable so she left the room. She believed this method used by Respondent was inappropriate and not likely to be successful, and she intended to talk to Respondent about it before advising the principal. Notably, Ms. Seabrook did not feel the need to intervene or immediately report the conversation and testified that in response to N.H.'s provocation, she may also have said "fuck you" back to N.H. This graphic discussion was also overheard by Deborah Phillips, an EBD counselor, who was in an adjacent office with the door open. After N.H. called Respondent a "pussy," Respondent asked N.H. if he knew what one was, had ever seen one or knew what to do with one. Ms. Phillips did not intervene or report the conversation. According to Ms. Phillips, this extremely graphic and profane interaction between N.H. and Respondent was only a minute or two. Ms. Phillips testified that she would not go toe to toe with N.H. because she believed it would only elevate the behavior. While Respondent and N.H. were arguing, and Respondent asked N.H. to define the words he was using, D.J. used his cell phone to video and audio record approximately 25 seconds of the conversation. In the recording, Respondent is heard telling N.H. to spell "Ho." N.H. answered "hoe," and Respondent stated, "yea nigga-–that's what I thought." During the brief recording, D.J. is heard laughing in the background. The conversation had the desired effect. N.H. started laughing and immediately calmed down. Respondent was able to escort N.H. to the principal's office where it was decided that N.H. would not be suspended, but rather Respondent would drive N.H. home. During the ride home, N.H. was calm and there were no further incidents or inappropriate discussions. The following school day, D.J.'s mother brought the recording to the attention of the principal who initiated an investigation. Respondent immediately expressed remorse and regret that he used this unconventional method of defusing N.H.'s anger. Respondent admitted participating in the graphic dialogue and acknowledged that it was inappropriate. As a result of the investigation, Respondent was suspended effective June 19, 2014, without pay and recommended for termination from employment. Findings of Ultimate Fact As discussed in greater detail below, Petitioner proved Respondent violated School Board Policy 3210, Standards of Ethical Conduct, but failed to demonstrate by a preponderance of the evidence that Respondent committed any of the other charged offenses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order: (1) finding that just cause does not exist to terminate Respondent's employment; and (2) imposing punishment consisting of suspension without pay from employment through the end of the first semester of the 2014-2015 school year for violation of School Board Policy 3210 that does not amount to misconduct in office. DONE AND ENTERED this 20th day of November, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 20th day of November, 2014.
The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
