Findings Of Fact At all times pertinent to the allegations contained in the Notice of Charges, Williams was employed by the School Board in a variety of capacities. With the exception of paragraph 22, which, to preserve continuity, will be consolidated with paragraph 2 of the Notice of Charges, the allegations shall be considered seriatum. That during the 1965-1966 school year, the Respondent did receive an overall unsatisfactory rating. That the Respondent in the 1965 and 1966 school years received a poor rat- ing in the following area: "Relation- ship with others," and "Is healthy and emotionally stable;" and further received an unsatisfactory rating in the category of "works well with others," end "demon- strates professional attitude and imple- menting school policy." The evidence indicates that for the school year 1965-1966, Williams received an average score of 3.3 on his Dade County evaluation form. According to the form an average rating below 3.5 indicates unsatisfactory work in Dade County schools. On that same evaluation form Williams received a 3.0 rating for the category "Works well with others." There was no rating for "Is healthy and emotionally stable." Williams received a 2.8 rating for the category "Understands and supports school policies aid demonstrates a professional attitude in implementing them." From the 1965-1966 school year until the present Williams has consistently received satisfactory overall ratings for his work in the Dade County schools. That on or about January 16, 1968, the Respondent, while a visiting teacher with the School Board of Dade County, and more particularly assigned to Gladeview Ele- mentary School, the Respondent, did without reason or authority demanded [sic] of the principal, Mr. Leonard Wollman, his reason for having a child stand outside and perform a task signed by the principal. Said demand made by the Respondent was made in a loud, rude and unprofessional manner, and was over- heard by numerous persons located within the confines of the school. On or about January 16, 1968, Mr. Leonard Wollman was principal of Gladeview Elementary School and at that time observed a student throw an apple out a school window. When the student refused to pick up the apple, Mr. Wollman made the student pick it up along with other trash. At that time, Williams criticized the handling of the incident by Wollman and claimed that the child was being mistreated. There was a lack of competent substantial evidence to establish that Williams' inquiries as to the handling of the incident were made in a loud, rude and unprofessional manner. There was a complete absence of evidence to establish that Williams' comments were overheard by numerous persons located within the confines of the school. That during the 1969-1970 school year, the Respondent, Charles Williams, did receive an unsatisfactory evaluation in the area of personal characteristics and leadership, notwithstanding an overall average of 4.2. The Dade County evaluation form for school year 1969-1970 reflects that Williams received a score of 3.0 in each of two categories of personal characteristics and leadership. The remarks section indicates "Needs improvement in human relations and group processes, which hopefully he will develop within the year. Otherwise, performance this year has been outstanding." That during the year 1970, more particularly, during the month of October, 1970, the Respondent was required by the Director of the North Central District to submit to the district office a plan for gifted children to participate in a program as outlined by the District Office. Further, as a result of the Respondent's failure to comply with the directive of the District Office two deserving children from the Respondent's school were left out of the program. There is no evidence in the record to establish that Williams was required to submit a plan for gifted children. There was evidence to establish that Williams was required to submit the names of students in his school who qualified for the gifted child program by October 30, 1970, and that such names were submitted late. Notwithstanding the late submission, the names were still considered for the gifted child program. Furthermore, there is an absence of competent substantial evidence to establish that at deserving children were left out of the program because of the actions of Williams. In the final analysis, Williams is charged with failing to submit a plan when the evidence shows that he was not required to submit a plan. Accordingly, the charge is not supported by the evidence. That on or about November 23, 1970, the Respondent did berate and make sarcastic and provocative remarks to Mrs. Carol Kleinfeld because said teacher had sought a transfer from the school where the Respondent served as principal. On Motion of Williams at the hearing, the undersigned ruled that there was a complete absence of evidence to support this charge. That on or about March 1, 1971, the Respondent did berate Mrs. Carol Kleinfeld who [was a] teacher at the school where the Respondent is principal and further did scream and shout at [her] in a violent and threatening manner further threatening that he would fire all parties concerned. During the 1970-1971 school year, Carol Kleinfeld worked for Williams at Primary C Elementary School. From time to time, Williams and Mrs. Kleinfeld engaged in discussions concerning Mrs. Kleinfeld's performance of her duties. The evidence establishes that Williams was displeased with the performance and gave Mrs. Kleinfeld the lowest possible performance rating. The evidence also establishes that Williams pointed his finger at Ms. Kleinfeld on one or more occasions. However, there is an absence of competent substantial evidence to establish that Williams berated Ms. Kleinfeld or that he screamed and shouted at her in a violent and threatening manner. That during the 1970-1971 school year, the Respondent acted in such an unprofes- sional fashion towards teachers assigned to his school, that numerous teachers requested transfers to other schools as a result of the humiliating and threaten- ing attitudes of the Respondent. There was no competent substantial evidence to establish that Williams acted in an unprofessional manner toward his teachers or that numerous teachers requested transfers because of Williams' conduct. That on or about April 4, 1975, the Respondent did, in front of children and custodians, harass, threaten and berate one Franklin Clark, Coordinator of Primary C Elementary School, con- cerning an event which did not happen. On April 4, 1975, Franklin Clark was Community School Coordinator for Primary C Elementary School. Clark's working hours were from 2:00 to 10:00 P.M. On several occasions, prior to that date, Clark had taken extended supper without informing Williams. When Williams discovered this practice, he had occasion to correct Clark and reiterate the requirement that Clark be present at the School for the appropriate period of time. On the day in question, Williams confronted Clark with an accusation that Clark had not been present during his proper working hours the night before. Clark denied the accusation. While Williams was angry during that conversation, there was no evidence to establish that he harassed, threatened or berated Clark during the encounter. That during the year 1975, the Respondent did fail to cooperate with other school principals, more particularly Ms. Della A. Zaher, principal at Edison Park Elementary School, in that he failed to cooperate with a fellow school principal in establishing and coordinating the articulation plans for the second and third grade students. While the evidence shows that Williams did not in fact work with Ms. Zaher in establishing articulation plans for second and third grade students, the record is devoid of any evidence which would establish that Williams was required to do so. In fact, inter school cooperation was necessary only as desired by participating principals. The evidence does establish that Williams followed prescribed procedure for articulation plans and that there would have been no real benefit in deeling with Ms. Zeher as she had requested. That on or about November 19, 1976, the Respondent did leave a meeting early without authorization which meeting was for the purpose of the area superintendent to explain the alternative plans for attendance. The evidence establishes that on November 19, 1976, Williams attended a meeting of principals, directors, and area office personnel, called by the area superintendent. Williams left the meeting early. However, the evidence affirmatively establishes that no permission was required for any of the participants of the meeting to leave early. That during the month of November, 1976, the Respondent did fail to observe and follow the purposes outlined by Robert Little Supervisor of the attendance office, in his memorandum entitled, "Pro- cedures and Calendar for the Development of the 1977-78 Attendant Zone Changes," dated November 4, 1976. That by failing to follow the plan as outlined by the memorandum, the Respondent's actions created the potential for negative parent/community reaction. That the Respondent did not provide a written plan to the area office for con- sideration until February 8, 1977, and said report was scheduled to be rendered to the area office and the area superintendent on November 19, 1976. All other principals met this deadline. The evidence affirmatively establishes that the memorandum in question did not require Williams to do anything. The alternatives available in the memorandum were optional on the part of principals. On Motion of Williams, the Hearing Officer declared that there was insufficient evidence to establish the allegations of the foregoing charges. That on or about July 11, 1977, the respondent failed to be a witness for the School Board of Dade County which involved the suspension of an employee who was under the direction and control of the Respondent while he was principal at the Primary C Elementary School [sic]. That his refusal to be a witness was without foundation and further, was his duty and responsibility as an employee of the School Board of Dade County. On July 11, 1977, Williams was called to a conference regarding a hearing that was to be held that afternoon, involving another employee of the School Board. Williams went to the conference and became upset because he believed certain questions propounded to him were improper. Williams, however, was neither requested nor directed to be a witness at the hearing to be held later that day. No subpoena was issued to compel Williams' attendance at that hearing. That during the 1978-1979 school year, numerous teachers at the Primary C Elementary School, where the Respondent was assigned as principal, have sought reassignment because of the open criticism and un- warranted harassment by the Respondent. This charge is not substantiated by competent substantial evidence. While the evidence does indicate that Williams had a small number of disagreements with one or two teachers during that school year, the evidence further establishes that the overwhelming majority of the teachers at that school during that school year hold Williams in high regard. There is am absence of evidence to establish that numerous teachers sought reassignment. That on or about November 8, 1978, a principal's meeting was held for the purpose of assisting administrator's review procedures used to remediate professional personnel where performance is deficient and at said meeting, the Respondent acted in a negative and disruptive manner, so as to make the meeting ineffective for all persons concerned. This charge is unsupported by the evidence. The evidence does establish that at the meeting in question, Williams fully participated and asked pertinent, incisive questions of those conducting the meeting. That on or about January 9, 1979, the area superintendant [sic] attempted to have a conference with the Respondent con- cerning specific recommendations for improvement, and at said conference the Respondent was insubordinate, disruptive, hostile and negative toward the area superintendant [sic], in such a manner as to make the meeting an ineffective one, and thus the meeting had to be terminated because of the behavior of the Respondent. At the hearing in this cause, there was made available a complete transcript of the conference held on January 9, 1979, with Williams and the area superintendent. The document, received as Respondent's Exhibit "Y", demonstrates that Williams was neither insubordinate, disruptive, hostile or negative. In fact, the area superintendant terminated the meeting after ascertaining that Williams had no further questions regarding the recommendations for improvement which were given to Williams at the meeting. That in the school year 1969-1970 it was further noted that the Respondent needed improvement in "Human relations" and "Group processes." (As amended at the hearing in this cause.) The Dade County evaluation form for school year 1969-1970 reflects that Williams received an overall score of 4.2 for that school year. This constitutes a satisfactory rating in the Dade County School System. The remarks section says "Needs improvement in human relations and group processes which hopefully he will develop within the year. Otherwise his performance this year has been outstanding." 25. Evaluations for school years 1970-1971, 1971-1972, 1972-1973, 1973- 1974, 1974-1975, 1975-1976, 1976-1977 and 1977-1978, all show satisfactory performance ratings in the areas in question. Furthermore, these ratings reflect that while Williams is not a perfect individual, he is an outstanding educator who has made continued significant contributions to the Dade County School System and to the students under his care.
The Issue The issue is whether Petitioner, the Lake County School Board, has just cause to terminate the employment of Respondent, teacher Deborah Harkleroad.
Findings Of Fact Respondent Deborah Harkleroad has been employed by the School Board as a teacher for ten years. She is a member of the Lake County Education Association, the collective bargaining unit for teaching personnel. She is covered by the collective bargaining agreement between the School Board and the Lake County Education Association (the "CBA"), and holds a professional service contract with the School Board pursuant to Section 1012.33, Florida Statutes.1/ During the first two years of her employment, the 2001- 2002 and 2002-2003 school years, Ms. Harkleroad was assigned to Tavares Middle School. At the start of her third year in the fall of 2003, she transferred to Fruitland Park as that school's first elementary literacy coach. During the 2007-2008 school year, Ms. Harkleroad transitioned into teaching a regular third-grade class at Fruitland Park. She remained in that position during the 2009- 2010 school year. The School Board employs a performance evaluation methodology called "Instructional Personnel Performance Appraisal System" or "IPPAS." The standards for evaluation, the methodology to be used by evaluators, and the documents used in the evaluation of instructional personnel are set forth in the IPPAS Handbook. Article XI of the CBA acknowledges that the IPPAS is the vehicle for the evaluation and assessment of teachers employed by the School Board. Section 7 of Article XI of the CBA provides that an IPPAS Joint Committee composed of an equal number of representatives of the School Board and the Lake County Education Association will coordinate and monitor the development and implementation of the assessment process. Section 12 of Article XI of the CBA states that any teacher in danger of dismissal because of poor performance will be afforded the procedure set forth in section 1012.34, Florida Statutes. This procedure is given the colloquial acronym "NEAT," which stands for: N-- Notice of alleged deficiencies which, if not corrected, would lead to dismissal; E-- Explanation to the teacher of alleged deficiencies and suggestions for correction; A-- Assistance rendered by the administration to correct alleged deficiencies; and T-- Time for alleged deficiencies to be corrected. In accordance with the CBA and the IPPAS Handbook, the School Board evaluates teacher performance using an "Observation/Assessment of Professional Performance Standards" form in a procedure called an "Appraisal I." The Appraisal I is the standard evaluation for teachers employed by the School Board. The Observation/Assessment form contains 6 sections and subsections. The subsections are further divided into sub- subsections. The evaluator gives the teacher a score of "acceptable" or "unacceptable" in each sub-subsection. The overall evaluation is graded on a 12-point scale, one point for each of the 12 subsections. If the teacher's performance is graded unacceptable in even one sub-subsection, then the teacher receives an unacceptable score for the overall subsection. The only acceptable overall score on the Observation/Assessment form is a perfect 12. If a teacher does not receive an acceptable score in each of the 12 subsections, then the teacher's overall performance is deemed deficient. A deficient Appraisal I triggers the NEAT procedure and further evaluations. The IPPAS provides a voluntary alternative evaluation for experienced teachers who have received scores of 12 on the Appraisal I for the two immediately preceding years and have a professional service contract with the School Board. This alternative is called "PG-13," and allows the teacher to select a “professional growth” objective for the school year, work with an administrator in devising a strategy for attaining the objective, and demonstrate the attainment of the objective. Finally, the IPPAS contains an evaluation instrument called a "Professional/Personal Action Report Relating to Work Experience," or "Appraisal II." The Appraisal II is used to document individual instances of deficiency in a teacher's work performance that have been identified outside of the formal evaluation process. In order to become eligible for the voluntary PG-13, a teacher must have received no Appraisal II reports during the two years immediately preceding entry into PG-13. In order to remain eligible for the PG-13, a participating teacher must continue to meet the standard competency level for teaching performance, which includes receiving no Appraisal II reports. Since the 2004-2005 school year, Ms. Harkleroad had participated in the PG-13 evaluation process every year except 2007-2008, when she had back surgery and was unable to complete her PG-13 project. For the 2007-2008 school year, Ms. Harkleroad received an Appraisal I score of 12. On March 19, 2009, Ms. Harkleroad received an Appraisal II report from the principal of Fruitland Park, Melissa DeJarlais. The "Area of Concern" listed on the Appraisal II form was "Personal Characteristics and Professional Responsibilities." Dr. DeJarlais wrote the following explanation of Ms. Harkleroad's deficient performance: On 3-5-09, teachers required to administer the FCAT assessment were mandated to attend the annual FCAT administration training. Mrs. Harkleroad was observed nodding off and/or sleeping during this training. She later explained that she did not feel well and it was possible that her prescribed medication was causing her to be overly sedated. As a precautionary measure, Mrs. Harkleroad's testing responsibilities were changed to that of a proctor thus requiring us to assign another instructional person to her classroom for the express intention of administering the FCAT. Mrs. Harkleroad did not perform her proctoring duties and instead spent time working on school related activities not germane to FCAT testing. These activities included printing her substitute or lesson plans while students were actively taking the FCAT assessment thus compromising the testing environment. At the time she received the Appraisal II, Ms. Harkleroad wrote the following response: In response to the Professional/Personal Action Report dated 3-19-09, I was running a temperature of 102.6 and my blood pressure was dipping dangerously low due to being sick on 3-5-09. I should have taken a sick day on this date, but I didn't due to the diminishing amount of teaching time left before the FCAT. I did fully perform my duties as a proctor for the math FCAT testing, and I did not at any time perform the activities alleged. During the time when I was printing my students' cloze practice reading assignments, no students were actively taking the test. At the hearing, Dr. DeJarlais offered no first hand testimony regarding the allegation that Ms. Harkleroad did not perform her proctoring duties and printed documents in the classroom while the FCAT was being administered. She testified that she relied on the reports of the test administrator and the testing coordinator in issuing the Appraisal II to Ms. Harkleroad. Ms. Harkleroad testified that, unlike the previous principals she had worked for at Fruitland Park, Dr. DeJarlais had never liked her or appreciated the extra work she did in compiling data that tracked student performance on the FCAT and other standardized tests. Ms. Harkleroad testified that she had always received "rave reviews" for the extra work she did in creating and maintaining the school wide data bank for tracking standardized test scores. She resented the fact that Dr. DeJarlais neglected to rave over the data notebooks when Ms. Harkleroad presented them to her. Ms. Harkleroad felt personally snubbed and concluded that Dr. DeJarlais did not like her. As to the events of March 5, 2009, Ms. Harkleroad surmised that the test administrator was trying to make "brownie points" with Dr. DeJarlais by maliciously reporting falsehoods about Ms. Harkleroad's actions in the classroom. Ms. Harkleroad asserted that the administrator was a friend of Dr. DeJarlais, and that the principal simply took the administrator's word for what happened without conducting any further investigation. Ms. Harkleroad disputed the incident to Dr. DeJarlais to the point of crying, and she was so upset she had to leave school early that day. She testified that at the time she was unaware that the CBA allowed her to file a union grievance over the Appraisal II. Neither party called the test administrator, Kimberly Belcher, to testify. Based on the testimony, the undersigned is not inclined to second-guess Dr. DeJarlais' decision to take the word of Ms. Belcher as to what occurred in the classroom on March 5, 2009. Ms. Harkleroad offered only speculation as to any motive Ms. Belcher had to concoct a story about Ms. Harkleroad's actions during the FCAT. To accept Ms. Harkleroad's version of events, it is necessary to believe not only that Dr. DeJarlais was out to get Ms. Harkleroad, but that Dr. DeJarlais' vendetta against Ms. Harkleroad was such common knowledge that Ms. Belcher knew she could win "brownie points" by lying about the teacher to the principal. The evidence does not support such a chain of inferences. Ms. Harkleroad testified that during the meeting about the Appraisal II, Dr. DeJarlais emphasized that she would no longer be eligible for the PG-13 evaluations and would have to revert to the Appraisal I evaluation. Ms. Harkleroad stated, "I knew then, when she told me that, that she was out to destroy my career." This extraordinary statement was premised on Ms. Harkleroad's assertion that she has a severe panic disorder that renders her unable to withstand the situation presented by an Appraisal I, in which she must teach while an evaluator sits in the room and judges her performance. Ms. Harkleroad asserted that Dr. DeJarlais was aware of this condition, and purposely contrived to force Ms. Harkleroad back into the Appraisal I process in order to get rid of her. At this point, it is useful to digress from the main narrative to provide a brief history of Ms. Harkleroad's medical travails. She testified that she has a severe form of stress or panic disorder that makes her paranoid and unable to function in situations in which she thinks people are judging her. Earlier in her career, she was able to control the panic attacks with a prescribed medication, Xanax (alprazolam), and was able to perform well in Appraisal I situations. At some unspecified time prior to the 2005-2006 school year, Ms. Harkleroad underwent spinal fusion surgery. During the 2005-2006 school year, Ms. Harkleroad was involved in an incident requiring her to restrain a kindergarten student who was throwing wooden chairs in the library. Ms. Harkleroad's back was injured. Ms. Harkleroad alleged that the School Board's contract workers' compensation physician misdiagnosed the injury and sent her back to work. Two years later, another physician examined Ms. Harkleroad's MRI from the incident and determined that her fusion had been shattered. During the 2007-2008 school year, Ms. Harkleroad had major back surgery that kept her away from school for 12 weeks. When she returned to work during the spring semester of 2008, she was in a body cast, followed by approximately five months in a brace. Ms. Harkleroad testified that the damage to her back was so severe that it could not be completely repaired. She was subject to muscle spasms due to pressure on her sciatic nerve. The pain became so severe that in February 2009 she began seeing a physician for pain management. The physician prescribed what Ms. Harkleroad called "pretty heavy duty" medications such as Oxycontin (oxycodone). Ms. Harkleroad's physicians advised her that Xanax cannot be taken with Oxycontin. Therefore, she was forced to forego her panic disorder medication after February 2009. Dr. DeJarlais came to Fruitland Park at the start of the 2008-2009 school year. Ms. Harkleroad was unsure how much Dr. DeJarlais knew about her medical history, though she specifically recalled telling Dr. DeJarlais that she was the teacher who had back surgery and came back in a body cast. Ms. Harkleroad also recalled that, in her first conversation with the new principal, she told Dr. DeJarlais about her panic disorder. Dr. DeJarlais testified that she was unaware that Ms. Harkleroad claimed any disabilities. She knew that Ms. Harkleroad took pain medications for her back, but knew no specifics about them. Ms. Harkleroad testified that at the time of the FCAT administration meeting on March 5, 2009, she was sick and had just started on the pain management medications. She had taken Nyquil for a cold on top of the Oxycontin, and the combination caused her to fall asleep at the meeting. As noted above, she absolutely denied the other statements in the Appraisal II. Shortly after receiving the Appraisal II, Ms. Harkleroad was involved in an automobile accident that kept her out of work for the remainder of the 2008-2009 school year. She had further surgical procedures on her back and remained on pain medications as the 2009-2010 school year began. Patricia Nave, a veteran administrator, arrived at Fruitland Park as assistant principal at the start of the 2009- 2010 school year. Dr. DeJarlais assigned Ms. Nave to conduct the Appraisal I performance evaluations of Ms. Harkleroad. Ms. Nave did not know Ms. Harkleroad before August 2009, and testified she was not aware that Ms. Harkleroad had anxiety issues. On February 18, 2010, from 12:45 p.m. until 1:45 p.m., Ms. Nave observed Ms. Harkleroad and scored her on the Appraisal I form. Ms. Nave gave Ms. Harkleroad a score of 10 on the appraisal, rating her unsatisfactory in two of the 12 subsections. Under the section "Teaching Procedures," Ms. Harkleroad was rated unsatisfactory in the sub-subsection titled "Gives clear and explicit directions" within the subsection titled "Displays skills in making assignments." Under the section "Classroom Management," Ms. Harkleroad was rated unsatisfactory in the sub-subsections titled "Applies the established rules and standards for behaviors consistently and equitably" and "Provides conscious modeling to modify attitudes and behaviors" within the subsection titled "Creates and maintains positive environments in which students are actively engaged in learning." In the area of Teaching Procedures, Ms. Nave testified that in making an assignment, the teacher is expected to use appropriate vocabulary. The teacher tells the students what the assignment is and when it is due, then checks with the students to ensure they comprehend the assignment before releasing them to do the work. Ms. Harkleroad did not make a comprehension check. She simply told the students what to do. In the area of Classroom Management, Ms. Nave had "many, many concerns" regarding Ms. Harkleroad's "conscious modeling to modify attitudes and behaviors." Ms. Harkleroad made unacceptable comments to students throughout the lesson, such as: "I don't understand what you're not getting, probably because you're not paying attention," "Your rudeness scale is going up," and "You are all just counting, not paying attention to what you are counting." Ms. Nave found that Ms. Harkleroad was not setting a proper example to the students. The teacher is expected to be respectful and to set an example by being fair. Ms. Harkleroad was neither consistent nor fair. At times, she would scold the students for calling out without raising their hands, but at other times she would allow them to call out. Some children were walking around the room when they should have been sitting down for the lesson. Ms. Harkleroad admonished some of the students for walking around but allowed others to do it. She allowed the students to engage in off-task behavior. Ms. Harkleroad testified that in her experience, evaluations last for about 35 minutes. She testified that she was doing fine for the first 35 minutes of Ms. Nave's evaluation. However, when Ms. Nave stayed beyond the 35-minute mark, Ms. Harkleroad began to panic, believing that Ms. Nave intended to stay until she could find something wrong. Her performance fell apart in the latter part of the hour. Ms. Harkleroad stated that she told Ms. Nave about her panic disorder after the evaluation. Ms. Nave noted no dramatic change in Ms. Harkleroad's performance from the first half to the second half of her one- hour observation. Ms. Nave also had no recollection of Ms. Harkleroad discussing her panic disorder at any time, before or after the evaluation. When a teacher receives a deficient Appraisal I, the NEAT procedures require that the teacher also receive a Prescription/Assistance form to outline areas for improvement, recommendations on how to accomplish those improvements, and a time period for a follow-up observation. Ms. Nave met with Ms. Harkleroad on February 22, 2010 to go over the Prescription/Assistance form. Ms. Nave noted the areas of deficient performance and recommended that Ms. Harkleroad review sections of the IPPAS manual that prescribe methods for the areas in which she had been found deficient and watch certain DVDs on effective teaching methods. Ms. Nave gave Ms. Harkleroad four weeks, rather than the usual three weeks, to correct the deficiencies and undergo another observation. To further lessen the pressure on Ms. Harkleroad, Ms. Nave exercised her prerogative to use the February 18, 2010, Appraisal I as an "observation" rather than a formal appraisal that would be counted against Ms. Harkleroad. School Board records indicated that Ms. Harkleroad checked out the recommended DVDs from the Fruitland Park library. Ms. Harkleroad testified that she watched the DVDs. Ms. Nave performed a second Appraisal I on Ms. Harkleroad on March 26, 2010. This appraisal also resulted in a total score of 10. On this appraisal, deficiencies were found under the sections titled "Classroom Management" and "Presentation and Knowledge of Subject Matter." As to Classroom Management, Ms. Harkleroad was rated unsatisfactory in the same sub-subsections as on the February 18, 2010, appraisal: "Applies the established rules and standards for behaviors consistently and equitably" and "Provides conscious modeling to modify attitudes and behaviors" within the subsection titled "Creates and maintains positive environments in which students are actively engaged in learning." As to Presentation and Knowledge of Subject Matter, Ms. Harkleroad's performance was found unsatisfactory in the sub-subsection titled "Uses questioning techniques" under the subsection titled "Communicates and presents subject matter in a manner that enables students to learn." Ms. Nave testified that in the area of questioning techniques, the preferred technique is to ask a question, wait for the students to process the question, and then call on one student to answer the question. Ms. Harkleroad was asking "multiple questions," meaning that she would ask a question, then ask another question or ask the same question in a different way, before the students had a chance to respond. Ms. Nave stated that teachers are counseled not to ask multiple questions because it confuses the children. Ms. Nave stated that Ms. Harkleroad failed to exhibit another aspect of proper questioning. A teacher should ask a question, and then call the name of a student to answer the question. Asking the question before calling on a student ensures that the whole class pays attention to the question. If the teacher calls on one student, then asks the question, the other children are off the hook and feel free to pay less attention. Ms. Harkleroad frequently called on students before asking a question. Ms. Harkleroad agreed that her performance during this evaluation was "awful." Ms. Nave had come in to the classroom a day or two before and stayed for about 25 minutes. According to Ms. Harkleroad, "Everything went great. I thought that was my evaluation. A couple days later, here she comes in again. And immediately that's like, 'Okay, what are they doing? They couldn't find anything wrong that time, so they're coming in to find something wrong this time?'" She had a panic attack, and knew that the evaluation was "horrible." Again, Ms. Nave made no note of the dichotomy claimed by Ms. Harkleroad. Her observations were consistent over time. Ms. Nave saw no "great" lessons taught by Ms. Harkleroad. Nonetheless, Ms. Nave continued to encourage Ms. Harkleroad to improve her performance and genuinely believed that "she could get it together" with hard work and a sincere commitment to the recommendations she was receiving. On March 29, 2010, Ms. Nave completed a Prescription/Assistance form and reviewed it with Ms. Harkleroad. Ms. Nave again stated the areas of deficient performance and listed sections of the IPPAS manual that addressed Ms. Harkleroad's deficiencies. Ms. Nave also obtained the assignment of Linda Bradley, a School Board employee who works as a mentor to beginning teachers, to visit Ms. Harkleroad's class every week to observe and assist her with her ongoing remediation strategies. The Prescription/Assistance form provided that Ms. Harkleroad would correct her deficiencies by the end of the school year, June 9, 2010. Ms. Harkleroad would then go through a 90-day performance probation period during the upcoming school year. Also on March 29, 2010, Dr. DeJarlais issued a memorandum to Ms. Harkleroad titled "Performance Probation" that read as follows: Pursuant to the provisions of Florida Statutes 1012.34, I am writing to inform you that you have performance deficiencies in the areas of Classroom Management and Presentation and Knowledge of Subject Matter. Based on the deficiencies, I am placing you on performance probation for 90 calendar days beginning on 8-23-2010. The 90 calendar days will end on November 23, 2010. By letter dated March 31, 2010, Superintendent of Schools Susan Moxley warned Ms. Harkleroad of the consequences of failure to correct her performance deficiencies: Pursuant to Florida Statutes 1012.33, I am writing to inform you that performance deficiencies have been identified by your principal. I understand that your principal has already met with you and made recommendations for improvement. Your principal will provide assistance to help you correct the performance deficiencies during the subsequent school year. Please be advised that your contract with the Lake County Schools District may be terminated without correction of these performance deficiencies. Pursuant to s. 1012.33, you may request to meet with the Superintendent or her designee for an informal review of the determination of unsatisfactory performance. You may also request to be considered for a transfer to another appropriate position under a different supervising administrator for the subsequent school year. Such transfer, however, does not reverse this year's identification of performance deficiencies. Both Ms. Nave and Dr. DeJarlais testified as to other problems with Ms. Harkleroad's performance in the classroom. The parents of two children in Ms. Harkleroad's class complained that their children were receiving too many disciplinary referrals to the office. Upon investigation, the administrators agreed with the parents and Ms. Harkleroad was counseled on the issue. As an alternative to referring minor disciplinary cases to the office, teachers at Fruitland Park are allowed to send students to another teacher's classroom for a time. Placed in a strange class with students who do not know him, the recalcitrant student usually will calm down and quietly do his work. Ms. Harkleroad's grade level peers complained to Ms. Nave that Ms. Harkleroad took excessive advantage of this option, sending children to their classrooms more frequently than should have been necessary. Ms. Nave's major problem with Ms. Harkleroad was her classroom management, her "with-itness," in Ms. Nave's terminology. Ms. Harkleroad too often appeared unaware of the things she was saying to the children, and unaware of what the children were doing in the classroom. She would not notice that children were up and walking around the classroom during lessons. Ms. Nave stated that during her observations, as many as 12 out of 22 children in Ms. Harkleroad's classroom would not be focused on the lesson, and Ms. Harkleroad did nothing to put them back on task. Dr. DeJarlais noted that some parents had complained about Ms. Harkleroad's odd behavior at a student assembly. Her speech was slurred, she called out the same student's name more than once, and she seemed disoriented. Dr. DeJarlais witnessed the assembly, and agreed with the parents that there was a problem. She spoke to Ms. Harkleroad about maintaining a sense of awareness on stage.2/ Dr. DeJarlais mentioned several other minor incidents. In the spring of 2010, Ms. Harkleroad did not fill out her report cards correctly. She once walked into the wrong grade level meeting and had to be directed to the right one. There was an incident in which she placed a child on the floor during a disciplinary timeout, and Dr. DeJarlais counseled her to use a desk. During a walkthrough, Dr. DeJarlais saw Ms. Harkleroad teaching the wrong subject. In each of these instances, Dr. DeJarlais counseled Ms. Harkleroad rather than giving her an official disciplinary or performance write-up. Ms. Harkleroad was convinced that Dr. DeJarlais was intentionally using her panic disorder to get rid of her. This was based partly on a conversation Ms. Harkleroad claimed to have overheard in which Dr. DeJarlais referred to Ms. Harkleroad as a "liability" because of her use of pain medications. Ms. Harkleroad believed that Dr. DeJarlais thought of her as a drug addict. She testified that Dr. DeJarlais made frequent comments that insinuated that she was an addict, asking whether she had a "problem" or needed "counseling." Ms. Harkleroad believed these insinuations were intended to add to the pressure she felt at school and therefore increase the anxiety and panic she would feel during her evaluations. Dr. DeJarlais denied ever calling Ms. Harkleroad an addict or even suggesting such a thing. She did recall that she and Ms. Nave had conversations with Ms. Harkleroad about her nodding off in front of the class, and that Ms. Harkleroad mentioned that she might need to adjust her medications. Dr. DeJarlais did not pry into the kinds of medications Ms. Harkleroad was taking. Ms. Harkleroad spoke to her several times in general terms about seeking help for medical conditions such as back pain. Dr. DeJarlais' only suggestion regarding counseling came when Ms. Harkleroad told her that she feared she was having a nervous breakdown. Dr. DeJarlais credibly denied doing anything to intimidate or humiliate Ms. Harkleroad. Ms. Nave confirmed that she had seen Ms. Harkleroad appear to be sleeping or nodding off while standing in front of the class. At the time, Ms. Nave was unaware that Ms. Harkleroad took prescribed pain medications. Ms. Nave stated that Ms. Harkleroad was unaware that she was nodding off and denied it until Dr. DeJarlais confirmed that two other persons had reported seeing Ms. Harkleroad nod off. At that point, Ms. Harkleroad stated she would go see a physician. Ms. Harkleroad testified that her physician assured her that she could not have been falling asleep on her feet. The physician stated that one of her medications may have been causing mini seizures that resembled nodding off. Ms. Harkleroad testified that she passed this information on to both Dr. DeJarlais and Ms. Nave, though neither of the administrators recalled such a conversation. Given her feelings about Dr. DeJarlais, it was not surprising that Ms. Harkleroad chose the option of transferring to another school for the 2010-2011 school year. Ms. Harkleroad testified that she chose a transfer only after Dr. DeJarlais made it clear that she would prefer for Ms. Harkleroad to move on to another school. Dr. DeJarlais denied expressing such a preference. Ms. Nave recalled that she and Dr. DeJarlais met with Ms. Harkleroad to discuss her options for the 2010-2011 school year, which included transferring to another school or trying to work through the probationary process at Fruitland Park. Ms. Nave testified that when the discussion turned to the 90-day probationary period, Ms. Harkleroad mentioned that she might be having a nervous breakdown. This conversation occurred near the end of the school year, and was the first mention of any mental problems that Ms. Nave could recall. Ms. Harkleroad testified that the "nervous breakdown" conversation was more complicated than Dr. DeJarlais and Ms. Nave indicated. Ms. Harkleroad stated that she told the administrators that she was having multiple anxiety attacks, one after the other, and that she would have a nervous breakdown "if they kept on pushing me and pushing me." Though she had requested assignment to a middle school, Ms. Harkleroad was transferred to Beverly Shores Elementary School ("Beverly Shores") for the 2010-2011 school year and assigned to a third-grade classroom. At the end of the 2009-2010 school year, the School Board notified Jeffrey Williams, the principal at Beverly Shores, that Ms. Harkleroad would be joining his staff in August 2010. The notice informed Mr. Williams that Ms. Harkleroad was on performance probation, and that her issues were classroom management and presentation of subject matter. Mr. Williams also received a phone call from Dr. DeJarlais to discuss the transfer. Dr. DeJarlais did not go into the details surrounding Ms. Harkleroad's probation aside from stating that she believed the move would be good for Ms. Harkleroad. Mr. Williams contacted Ms. Harkleroad and suggested they meet to discuss her transition to Beverly Shores. Ms. Harkleroad met with Mr. Williams at his office. Ms. Harkleroad told Mr. Williams that she had received a deficiency in her IPPAS evaluation and had requested a transfer, though Beverly Shores was not really where she wanted to be. Ms. Harkleroad mentioned that she had a back problem. Mr. Williams did not recall anything in the conversation concerning panic attacks, an anxiety disorder, or any other condition that would hinder Ms. Harkleroad's ability to pass an Appraisal I evaluation. Ms. Harkleroad denied telling Mr. Williams that she did not want to be at Beverly Shores, though she conceded that she told him she would rather be in a middle school because her back problems made it difficult to keep up with younger children. Ms. Harkleroad testified that she told Mr. Williams about her panic disorder, and further told him that she could not take medication for it because of the medication she took for her back pain. She requested that Mr. Williams use the PG- evaluation tool, or record her class, anything other than having people come into her classroom to judge her. She said that Mr. Williams replied that the rules required the use of the Appraisal I. Mr. Williams did not see Ms. Harkleroad again until school started in August 2010. He assigned assistant principal Tanya Rogers to be the supervising administrator handling all issues related to Ms. Harkleroad's job performance. During the first 90 days of the 2010-2011 school year, Mr. Williams limited his involvement to walkthroughs of Ms. Harkleroad's classroom. Ms. Rogers is an experienced assistant principal who has performed many teacher evaluations under the provisions of the IPPAS and the CBA. Ms. Rogers knew that Ms. Harkleroad was on performance probation, and saw to it that her Prescription/Assistance form from Fruitland Park was implemented at Beverly Shores. Linda Bradley was retained as Ms. Harkleroad's instructional coach, and Ms. Harkleroad was offered classes through the school's learning resource center. Ms. Rogers conducted frequent classroom walkthroughs and met with Ms. Harkleroad to assist her in preparing for her evaluation. Upon her arrival at Beverly Shores in August, Ms. Harkleroad discovered that her classroom was "filthy. There were mouse droppings all over. It took four of us six hours to get the room just clean enough that I'd bring my stuff in there. No air conditioning. . . It was almost six weeks before that air conditioning was fixed." Mr. Williams testified that the classroom was clean when Ms. Harkleroad arrived at the school in August 2010. Ms. Harkleroad estimated that the air conditioning was not repaired until September 27, and testified that the temperature reached 100 degrees in the afternoons. She had complained to Ms. Rogers but nothing was done until the date of the second observation by Ms. Rogers, when Ms. Harkleroad repeatedly noted how hot it was in the classroom and how difficult for the students to concentrate on their lessons. Ms. Harkleroad also testified that there was a "horrible" burning smell in the classroom. She complained to Mr. Williams about it. Eventually, on December 9, 2010, the Lake County Health Department came to the school to investigate the source of the smell. Ms. Harkleroad denied having called the Health Department. Ms. Rogers agreed that Ms. Harkleroad complained about the air conditioning in September. However, Ms. Rogers testified that she entered a work order and that the air conditioning was repaired on September 7. Ms. Rogers recalled no complaints about a smell in the classroom, though she did acknowledge that the Health Department was at the school on December 9, and that it found everything in Ms. Harkleroad's classroom to be in satisfactory condition. Mr. Williams recalled that Ms. Harkleroad complained about an odor in her classroom. Mr. Williams was convinced that Ms. Harkleroad had called the Health Department for the simple reason that the inspectors went straight to her classroom when they arrived at the school. However, Mr. Williams had no firm evidence that Ms. Harkleroad made the call and no way of knowing whether a concerned parent had made the call. In the absence of any stronger evidence, Ms. Harkleroad's denial is credited. There was no indication that either Ms. Rogers or Mr. Williams took retaliatory action against Ms. Harkleroad for her various complaints about conditions in her classroom, or that the performance appraisals Ms. Harkleroad received at Beverly Shores were based on anything other than her performance in the classroom. As part of her efforts to help Ms. Harkleroad prepare for her Appraisal I, Ms. Rogers conducted two classroom observations using the "Screening/Summative Observation Instrument" of the Florida Performance Measurement System ("FPMS"). This form was developed by the Florida Department of Education to enable an observer to calculate the frequency of effective and ineffective teaching techniques. In the first observation, conducted on September 7, 2010, Ms. Rogers found performance deficiencies in the areas of classroom management and presentation and knowledge of subject matter. In the second observation, conducted on September 27, 2010, Ms. Rogers found performance deficiencies in the same two areas, particularly in the area of managing student conduct. Ms. Rogers testified that she saw a great deal of choral reading and review of prior knowledge taking place in the classroom but observed no teaching of new content. She also noted that Ms. Harkleroad had a punitive approach to classroom management, and took a sarcastic tone with the children that tended to escalate discipline problems rather than calm them. Based on her observations, Ms. Rogers wrote a Prescription/Assistance form on September 29, 2010, and met with Ms. Harkleroad to go over the needed improvements. Ms. Rogers recommended weekly visits by Ms. Bradley, who would conduct FPMS observations in the problem areas and provide specific feedback to Ms. Harkleroad. Ms. Rogers also recommended specific classes offered at the School Board's staff development training facility: "Increasing Student Engagement," "Motivating Students," and "Classroom Management for Elementary Teachers." Ms. Rogers wrote that Ms. Harkleroad "will correct these behaviors by October 25, 2010, two weeks after staff development opportunity." Ms. Harkleroad testified that she attended one of the recommended classes, but found that it was unrelated to anything occurring in her classroom. She declined to attend the other classes. As the end Ms. Harkleroad's 90-day performance probation approached, Ms. Rogers notified Ms. Harkleroad of her intent to perform the Appraisal I. Ms. Harkleroad requested a conference with Ms. Rogers prior to the evaluation. At the conference, Ms. Harkleroad requested that Mr. Williams perform the Appraisal I evaluation. Ms. Rogers testified that Ms. Harkleroad told her that she found it difficult to respect women in positions of authority. Ms. Harkleroad believed that women should be at home taking care of their children, and that society's problems could be traced to women working outside the home. Ms. Rogers found this logic confusing because Ms. Harkleroad was herself a woman working outside the home. When Ms. Rogers pointed this out, Ms. Harkleroad responded that she did not have children. Ms. Rogers responded that her own children were grown and not living with her. Ms. Harkleroad asked Ms. Rogers whether her daughter stayed home with her children. Ms. Rogers replied that her daughter worked. Ms. Harkleroad said, "See, that's what I'm talking about. That's what's wrong with society." At the hearing, Ms. Harkleroad testified that her request had nothing to do with any general complaint about women in the workplace.3/ Her problem was with Ms. Rogers, whom she found to be unreasonably critical. Ms. Rogers conducted her first observation before Ms. Harkleroad even had a chance to learn the names of the children in her classroom, then told Ms. Harkleroad that she was an incompetent teacher, which caused Ms. Harkleroad to lose all respect for her. Thus, she told Ms. Rogers that she preferred to have Mr. Williams perform her Appraisal I. Ms. Rogers' version of the conference with Ms. Harkleroad is credited. Mr. Williams testified that Ms. Rogers came to him and told him that Ms. Harkleroad did not respect women in authority. Ms. Harkleroad did not think she could get a fair evaluation from Ms. Rogers and requested that Mr. Williams perform the appraisal. Without delving too deeply into the reasons for Ms. Harkleroad's request, Mr. Williams agreed to perform the Appraisal I. Ms. Rogers and Mr. Williams agreed that he declined to take the file that Ms. Rogers had developed on Ms. Harkleroad. He wanted a clean slate, and did not want to be influenced by the prior observations of Ms. Rogers. He wanted to evaluate what was happening in the classroom without preconceptions. Mr. Williams intended to evaluate Ms. Harkleroad as he would any other teacher. He entered Ms. Harkleroad's classroom several times during the week before the evaluation and performed a lengthy walkthrough to assess the overall learning environment. Mr. Williams conducted the Appraisal I on or about November 22, 2010.4/ He gave Ms. Harkleroad a score of 11. Mr. Williams found a deficiency in the section titled "Presentation and Knowledge of Subject Matter." Ms. Harkleroad was rated unsatisfactory in the subsection titled, "Communicates and presents subject matter in a manner that enables students to learn." This subsection contains seven sub-subsections, and Mr. Williams graded Ms. Harkleroad unsatisfactory in six of them: "Treats concepts/cause and effect/or states and applies rules;" "Teacher directed/guided practice is provided;" "Uses questioning techniques;" "Directs lesson;" "Provides periodic review;" and "Poses problems, dilemmas, and questions to promote critical thinking." Mr. Williams found these deficiencies because there was no direct instruction taking place in the classroom that would satisfy those areas of observation. Shortly after the evaluation, Ms. Harkleroad told him that she "just didn't have it today" and that she knew her performance had not been good. Ms. Harkleroad testified as to her problems with Mr. Williams' evaluation. These problems were related to her panic disorder and to an illness she claimed she had on the day of the evaluation. When Mr. Williams did his preparatory walkthrough of her classroom on the Friday before the evaluation, Ms. Harkleroad mistakenly believed that he was conducting the Appraisal I. As she had with Ms. Nave's earlier pre-evaluation classroom visit, Ms. Harkleroad claimed that the lesson went very well. She was jubilant that she had passed the evaluation. Mr. Williams noted no variance between what he observed on his walkthroughs of Ms. Harkleroad's classroom and what he observed during the November 22, 2010, Appraisal I. On the following Monday morning, Ms. Harkleroad was at an IEP meeting when she started pouring sweat and finding it difficult to breathe. The problem became worse as the day went by. She told Mr. Williams how sick she felt and that she might have to go home. Less than 30 minutes later, Mr. Williams appeared in her classroom to conduct the Appraisal I. Ms. Harkleroad stated that Mr. Williams' arrival "just blew it." She knew then that "all they wanted to do was fire me. They didn't care how they did it." After the evaluation, Ms. Harkleroad's husband picked her up from school because she was too ill to drive. Ms. Harkleroad testified that she was diagnosed with bacterial pneumonia. She did not return to school until the Monday after Thanksgiving, November 29, at which time Mr. Williams met with her to review her evaluation. Mr. Williams testified that Ms. Harkleroad said nothing to him about being sick and that he would have rescheduled the evaluation had he known. Before and during the evaluation, she showed no signs of illness. It was only after the evaluation, when they were discussing her poor performance, that Ms. Harkleroad appeared to become ill. Mr. Williams called the school nurse and Ms. Harkleroad's husband. Ms. Harkleroad later told him she had been hospitalized, but Mr. Williams had no firsthand knowledge of her medical treatment. On November 29, 2010, Mr. Williams conducted a post- evaluation conference with Ms. Harkleroad. He presented her options, which at that point were limited to resigning her position or facing formal termination procedures by the School Board. To Mr. Williams' surprise, Ms. Harkleroad chose termination. He was surprised because termination would likely end Ms. Harkleroad's teaching career. When Mr. Williams inquired further, Ms. Harkleroad told him that she chose termination in order to preserve her unemployment benefits. At the hearing, Ms. Harkleroad testified that she chose termination because resigning would have constituted an admission she had done something wrong. As to aspects of Ms. Harkleroad's performance outside the formal evaluation, Mr. Williams stated that there had been a couple of parent complaints. One child was moved out of her classroom due to what the parent termed "poor communication" with Ms. Harkleroad. Mr. Williams had to tell Ms. Harkleroad to stop asking the child why he had moved from her class. In a memorandum to Dr. Moxley dated December 9, 2010, and titled "Recommendation of Termination," Mr. Williams wrote as follows, in relevant part: Pursuant to Florida Statutes 1012.34, I am writing to inform you that Mrs. Deborah Harkleroad has completed his/her 90-calendar day performance probation and has failed to correct his/her performance deficiencies. I do not believe that Mrs. Harkleroad can correct said deficiencies and his/her employment should be terminated. I have complied with all applicable provisions of Florida Statutes 1012.34.... On the morning of December 13, 2010, Ms. Harkleroad wrote the following email to Dr. Moxley: Before a final decision is made on my employment status, I would like the opportunity to meet with you in order to discuss my current situation. It is my contention that I was performing my duties as a teacher in a manner that supported Literacy First guidelines on the date and time my evaluation was conducted. If I had been doing any type of activity other than something similar to what I was doing, I would not have been in compliance with established guidelines. Literacy First is a research-based, data-driven, comprehensive program designed to accelerate reading achievement. Beverly Shores implements the Literacy First program,5/ which includes explicit directives as to what should take place in whole group and small group instruction. Ms. Harkleroad did not raise Literacy First concerns with Mr. Williams at the time of the evaluation or even at the November 29 conference. After the fact, however, she contended that during the hour in which Mr. Williams conducted the evaluation, the Literacy First schedule called for her to perform whole group activities, which do not include "instruction." The children were building fluency by engaging in group reading practice. Had Mr. Williams stayed through the next hour, he would have seen explicit instruction when the class was broken into small groups. Ms. Harkleroad's argument that Literacy First mandated that she not teach the class is not credited. As early as her first observation on September 2, 2010, Ms. Rogers had noted that Ms. Harkleroad's whole group method appeared limited to "echo reading" rather than any of the other various strategies called for by the Literacy First program. Ms. Rogers did not formalize this observation in writing because echo reading is a legitimate Literacy First strategy, and she wanted to give Ms. Harkleroad the benefit of the doubt. Mr. Williams understood Ms. Harkleroad's class schedule, and as principal of Beverly Shores he understood the Literacy First guidelines. When he conducted his evaluation, he knew that Ms. Harkleroad's class was involved in whole group reading. It was in this context, with a full understanding of what should have been happening under Literacy First, that Mr. Williams concluded that no instruction took place during his observation. Ms. Harkleroad was not leading the class. Dr. Moxley did not meet with Ms. Harkleroad. By letter dated December 13, 2010, Dr. Moxley informed Ms. Harkleroad that, pursuant to section 1012.34, Florida Statutes, Ms. Harkleroad had failed to correct performance deficiencies identified by her principal and Dr. Moxley intended to recommend to the School Board that Ms. Harkleroad's employment be terminated as of January 10, 2011. At the hearing, Ms. Harkleroad contended that she had placed the School Board on notice of her panic disorder before the 2009-2010 school year, and that she specifically requested that school administrators use the PG-13 evaluation process as an accommodation to her disability. Ms. Nave recalled Ms. Harkleroad requesting that she be allowed to use the PG-13 evaluation. Ms. Nave stated that Ms. Harkleroad gave no reason for the request, other than an assertion that she had earned the right not to go through the Appraisal I process. Ms. Harkleroad testified that she also pleaded with Mr. Williams to allow her to use the PG-13 evaluation because of her panic disorder. Mr. Williams flatly and credibly denied that any such conversation occurred.6 Dr. DeJarlais had no recollection of Ms. Harkleroad asking for the PG-13 evaluation. She testified that Ms. Harkleroad made no complaints about the Appraisal I procedure until after the evaluation had been completed. The testimony of the four administrators permits the inference that, far from being open with her superiors about her mental and physical problems, Ms. Harkleroad tended to downplay them because of the intense scrutiny she felt she was receiving regarding her job performance. On several occasions, Ms. DeJarlais and Ms. Nave made tentative inquiries into Ms. Harkleroad's emotional well being only to have Ms. Harkleroad sidestep their questions with vague assurances that she was seeing a doctor.7/ Out of respect for her privacy, the administrators left it at that and focused on her classroom performance. The first duty of the school administrators is to ensure that the children in their charge receive adequate instruction from a qualified, competent teacher. If Ms. Harkleroad's panic disorder required an accommodation, it was her responsibility to come forward and request it. The evidence established that she did not do so. It was not the duty of her superiors to tease the information out of her. As Mr. Williams pointed out, he is responsible for 55 teachers at Beverly Shores. He does not have the time to delve into all their personal lives and medical conditions, and tries to respect their privacy. Under all the circumstances, his focus was properly on the classroom. Aside from alleging a conspiracy of sorts to get rid of her,8/ Ms. Harkleroad could not explain why four experienced school administrators would lie about having no recollection of talking with her about her panic disorder, though they all testified that they knew about her back problems and had at least some knowledge that she took pain medications. Ms. Harkleroad testified that two previous principals at Fruitland Park, Joan Denson and Charles McDaniel, had been aware of and made accommodations for her panic disorder. She called neither of these former principals as witnesses to corroborate her version of events. The failure to corroborate her testimony was a theme of Ms. Harkleroad's overall presentation. She offered no documentary evidence regarding her medical condition. None of her physicians were called to testify. No fellow employees, friends or neighbors were called to testify that Ms. Harkleroad had discussed her panic disorder with them. Ms. Harkleroad testified that her students and their parents loved her as a teacher, but she called none of them to testify. Ms. Harkleroad's only supportive witness, teacher Norma Jean Miller, had not worked with Ms. Harkleroad for several years and only knew her as a literacy coach, not a classroom teacher. Ms. Miller knew of Ms. Harkleroad's back problems, but said nothing about a panic disorder. In the absence of corroborating evidence, it strains credulity beyond all reason to accept the sole word of Ms. Harkleroad that Dr. DeJarlais decided to get rid of her because of her drug use, realized that Ms. Harkleroad's panic disorder was a means to insure that she failed her evaluations, then apparently recruited the administration of another school to complete the process.9/ Because there is no evidence beyond Ms. Harkleroad's less than credible testimony to establish that the evaluation process was conducted in bad faith, it is found that the administrators at Fruitland Park and Beverly Shore judged Ms. Harkleroad on the merits of her teaching performance and graded that performance accordingly. Ms. Harkleroad complains that the criteria used in the evaluations were vague to the point of opacity, and did not take into account that different teachers may have different approaches to their work. She believes that some of the standard rules for classroom instruction are "ridiculous." When Ms. Rogers told her that she should make the children raise their hands and be called on before speaking in class, she airily dismissed the criticism as a "philosophical difference." Though the specific problems with Ms. Harkleroad's classroom performance were eminently correctible, her obstinacy and/or obtuseness in rejecting pointed advice from her superiors made it clear that she was highly unlikely ever to correct her performance deficiencies. The evidence established that the process followed by School Board personnel in evaluating Ms. Harkleroad's performance before and during her probationary period followed the letter of the IPPAS and the CBA, including the NEAT procedure set forth in Section 12 of Article XI of the CBA. The criteria and forms used to evaluate her performance were taken directly from the IPPAS Handbook. However, even though all procedures were correctly followed in the evaluation process, the School Board failed to establish grounds for terminating Ms. Harkleroad's employment pursuant to Section 1012.34(3), Florida Statutes, because it failed to offer evidence, apart from the anecdotal reports of the evaluators, that Ms. Harkleroad's teaching performance adversely affected the academic performance of the students assigned to her classroom.10/ The assessment procedure is to be "primarily based on the performance of students," and the absence of data such as FCAT scores or other objective comparators renders the School Board's case insufficient under section 1012.34, Florida Statutes.11/ The issue then becomes whether the School Board has established sufficient grounds for "just cause" termination pursuant to section 1012.33(1), Florida Statutes. On the sole statutory ground available under the evidence of this case, incompetency, the School Board has met its burden and justified its decision to terminate Respondent's employment. The evidence produced at the hearing demonstrated that the School Board had just cause to terminate the employment of Ms. Harkleroad for incompetency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's professional service contract and dismissing Respondent on the ground of incompetency. DONE AND ENTERED this 24th day of June, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2011.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Petitioner employed Respondent as a secretary at Lindsey Hopkins Prior to 2010, school administrators at Lindsey Hopkins had received numerous complaints from school employees that Respondent had verbally harassed them. On February 8, 2010, Esteban Sardon was working as Assistant Principal of Lindsey Hopkins. On that date he was in one of the school's administrative offices and Respondent was also present. Mr. Sardon coughed while in the office. Almost immediately, Respondent accused Mr. Sardon of having spit on her. Respondent sent Dr. Rosa Borgen, the principal of Lindsey Hopkins, a letter on February 10, 2010, that alleged that Mr. Sardon had deliberately twice spit and coughed in her face. In her letter, Respondent described "[t]wo big huge cough breath [sic] rate were [sic] about 70 to 80 wind speed with a [sic] some saliva." Respondent also sent Mr. Sardon a memorandum calling his behavior "unprofessional" and alleging that she was going to contact "CRC" (the Civil Rights Compliance Office). Mr. Sardon denied, credibly, that he spat on Respondent. The more credible evidence established that he did cough twice in Respondent's presence, but the coughs were dry coughs and not in the direction of Respondent. Respondent fabricated the allegation that Mr. Sardon had purposefully spat on her. In an attempt to resolve the issues related to Respondent's allegations that Mr. Sardon had spat on her, Mr. Gornto, a district administrator, decided that the school administrators should meet with Mr. Sardon and Respondent. On March 9, 2010, Pamela Johnson, an instructional supervisor, from Mr. Gornto's office, met with Mr. Sardon, Respondent, Dr. Borgen, and another assistant principal of Lindsey Hopkins. At the meeting, Respondent presented a document entitled "What Would Make Me Happy" and asked Mr. Sardon to sign it. The "demands" were as follows: I will never ever to [sic] use you're [sic] inside waste on me [sic]. Meaning neither your breath, nor your saliva. I am not a toilet. I am Human [sic]. A Human Being [sic]. Not to try to embarrass me in front of my co-workers. Not to retaliate against me after this incident. Big apology. Mr. Sardon offered an apology to put the matter at rest, but he refused to sign the document. Shortly after the "spitting" accusation, Respondent had conflicts with Drusilla Sears and Donna Wallace, both of whom worked closely with Mr. Sardon. On March 2, 2010, Ms. Sears, a school account clerk, asked Respondent if she was finished using a copy machine. Respondent told her that she had asked a "stupid question," thereby starting a verbal altercation that included finger- pointing by Respondent and by Ms. Sears. The greater weight of the credible evidence established that Ms. Sears did not threaten physical harm to Respondent. This run-in upset Ms. Sears. On March 3, 2010, Respondent sent another letter to Dr. Borgen claiming that Ms. Sears had tried to beat her up. In the letter Respondent also stated, in all capital letters, the following: "I AM NO FOOL. I KNOW SOMEONE TOLD DRUSILLA TO DO THIS TO ME." There was no credible evidence that anyone had instructed Ms. Sears to do anything to Respondent. To the contrary, the greater weight of the credible evidence established that Respondent provoked the incident with Ms. Sears. On March 5, 2010, Respondent wrote another letter to Dr. Borgen. That letter referenced the incidents with Mr Sardon and Ms. Sears and also asserted that someone had placed child pornography on her school computer. There was no credible evidence that anyone had placed pornography on Respondent's computer.1 On March 16, 2010, Mr. Gornto sent Respondent a memorandum related to an earlier correspondence he had received from Respondent. In the letter Mr. Gornto told Respondent that any future complaints regarding employees should be made to Dr. Borgen, to the CRC, or to the school police department. Despite this directive from Mr. Gornto, Respondent continued to contact Mr. Gornto. These contacts (Petitioner's Exhibits 9, 12, and 17-21) were in the form of emails that contained false (and often nonsensical) allegations of employee wrongdoing against her. Each of these emails constituted separate and distinct acts that contradicted Mr. Gornto's directives to Respondent. A recurring theme in those emails was that Dr. Borgen and other school employees were trying to "destroy" her or make her "miserable." In one email, Respondent alleged that one of Mr. Gornto's subordinates had been impersonating Mr. Gornto. In April 2010, Respondent approached school clerk Donna Wallace and accused her of saying something about Respondent to a school counselor. Ms. Wallace denied, credibly, that there was a factual basis for the allegation. Respondent told Ms. Wallace to "watch her back" and threatened to sue her for slander. The incident made Ms. Wallace feel uncomfortable and embarrassed. On April 13, 2010, Respondent engaged in a verbal altercation with Shundra Hardy, a data input specialist. Ms. Hardy worked in the student registration department. When Mr. Sardon was made aware of this incident, Mr. Sardon told Respondent that she was only to visit the registration area as long she did not disturb other employees. This directive caused Respondent to yell and confront Mr. Sardon in his office, As a result of that confrontation, Mr. Sardon called school security. On May 18, 2010, a conference for the record (CFR) was held with Respondent. Dr. Borgen, Mr. Gornto, and Dr. Anna Rasco (Administrative Director of Petitioner's Office of Professional Standards) represented Petitioner. The recent conflicts involving Respondent prompted a decision that she would have to undergo a fitness for duty evaluation. During the time the evaluation was to be completed, Respondent was placed on alternate assignment at her home. Respondent was directed to refrain from engaging in the behaviors that had prompted the need for the evaluation, and she was directed not to contact the school (other than through the principal's office to report her attendance) while on alternate assignment. By letter dated August 10, 2010, Stephen Kahn, M.D., advised Dr. Rasco that Respondent was not fit for duty due to her mental status.2 By letter to Dr. Rasco dated September 4, 2010, Richard S. Greenbaum, Ph.D., a psychologist, opined that Respondent could return to work if she continued to see a psychotherapist.3 On October 4, 2010, Respondent called Lindsey Hopkins and spoke with two employees. These contacts were in direct violation of the directives that had been issued to her.4 On October 14, 2010, a CFR was held with Respondent. Ms. Nyce Daniel (who had replaced the retired Dr. Borgen as Principal of Lindsey Hopkins), Mr. Gornto, and Dr. Brasco represented Petitioner. This CFR was held to address Respondent's non-compliance with the terms and directives given to her while on alternate assignment. Respondent was directed to refrain from engaging in the behaviors that had prompted the need for a fitness evaluation. Respondent was also advised that she would not be permitted to return to work because of the conflicting opinions between Drs. Kahn and Greenbaum. Respondent selected Joseph W. Poitier, Jr., M.D., to conduct her third evaluation. By letter to Dr. Rasco dated March 14, 2011, Dr. Poitier opined that within a reasonable medical certainty Respondent was able to return to work without restriction.5 On March 30, 2011, a CFR was held with Respondent. Ms. Daniel, Mr. Gornto, and Dr. Brasco represented Petitioner. Based on Dr. Poitier's opinion, Respondent was advised that she could return to work on April 4. Respondent was again given directives that included explicit directives to refrain from the behaviors that had caused the need for her fitness for duty evaluations. Specifically, Respondent was instructed to avoid altercations with school staff. On April 5, 2011, with people present in the office, Respondent, using vulgar language, told Cassandra Johnson (a teacher at Lindsey Hopkins) that her husband, Charles Johnson (the head custodian) had engaged in a sexual affair with Dr. Borgen and that Dr. Borgen had been "doing all the guys in school." Ms. Johnson attempted to distance herself from Respondent, but Respondent pursued Ms. Johnson down the hall and continued her verbal tirade. Ms. Johnson was humiliated and upset by the incident. Respondent's actions disrupted Ms. Johnson's ability to perform her duties that day. Mr. Johnson was very upset by Respondent's accusation and denied, credibly, that he had ever had a sexual relationship with Ms. Borgen. Mr. Johnson was concerned that the accusations could hurt his marriage, and he was concerned because his wife was very upset. On April 7, 2011, Respondent confronted Thomas Nunn (an automotive instructor at Lindsey Hopkins) and implied that he had been in an intimate relationship with Dr. Borgen. Mr. Nunn was not offended by Respondent's comments. However, Ms. Daniel learned of Respondent's comments to Mr. Nunn. On April 8 Ms. Daniel directed Respondent to refrain from such conduct. At the time Ms. Daniel gave those directions to Respondent, Ms. Daniel did not know about the incident involving Mr. and Ms. Johnson. On April 8, 2011, Respondent called Mr. Gornto's office to ask permission to take half-day leave. This call was in violation of the directives Mr. Gornto had given to her as to how she was to communicate with her supervisors. On April 11, 2001, Ms. Daniel learned of the incident involving Mr. and Mrs. Johnson. On or about April 28, 2011, Respondent complained to the CRC that Erinn Gobert (the ESOL chairperson at Lindsey Hopkins) and Sophia Hall (an assistant principal at Lindsey Hopkins) had been harassing her. She stated that they were mumbling things about her, taunting her, and teasing her. She further reported that Ms. Gobert and Ms. Hall made gestures that they wanted to fight with Respondent. Respondent's accusations of harassment triggered an investigation. Respondent's accusations were complete fabrications. Neither Ms. Gobert nor Ms. Hall had any meaningful contact with Respondent. On May 18, 2011, a CFR was held with Respondent to address her gross insubordination and violation of other school board rules. Ms. Daniel, Mr. Gornto, and Dr. Rasco represented Petitioner. As a result of her behaviors, Ms. Daniel had to constantly give Respondent specific tasks to minimize Respondent's interaction with other employees. Despite Ms. Daniel's efforts, Respondent's run-ins with co-workers were throughout the school and reached outside of Respondent's assigned work area. Many of her co-workers were not comfortable working with or near Respondent. The efforts to shield co- workers from Respondent created extra work for Ms. Daniel. Respondent's repeated contacts with Mr. Gornto and her baseless accusations towards co-workers disrupted his work and consumed an inordinate amount of his time. Respondent's behavior negatively impacted employee morale at Lindsey Hopkins and disrupted its operations. Respondent repeatedly refused to obey administrative directives that were reasonable in nature and given with proper authority.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 17th day of October, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 17th day of October, 2011.
The Issue The issue is whether Respondent should be terminated from her position as an instructional employee for gross insubordination and being willfully absent from duty.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this termination case, Petitioner, Lake County School Board (Board), seeks to terminate Respondent, Brenda Armstead, an instructional employee, on the ground that she was willfully absent from duty without leave and guilty of gross insubordination by virtue of having repeatedly refused to report to her job assignment. In a letter dated May 26, 2000, Respondent asked for a hearing "as soon as possible," contending that the "termination was illegal." In school year 1999-2000, Respondent was employed as a teacher at Lake Hills School in Eustis, Florida, where she taught 3 to 5-year-old children with severe emotional disabilities. In September 1999, Respondent was arrested for stalking. However, the criminal charges were later dropped or reduced to a lesser charge. Pending the disposition of the matter, Respondent continued working in the classroom. In January 2000, Respondent reported to her supervisor that she had been exposed to "CMV," an infectious viral disease. Despite being tested as negative, Respondent continued to have concerns with her health and began to exhibit unusual or bizarre behavior in the classroom. Among other things, Respondent constantly wore gloves in the classroom, avoided physical or close contact with her aides, and exhibited other unusual habits or practices. She also began sending "unusual" correspondence to the Superintendent. Because of this, she met with her principal and the Board's Assistant Superintendent on February 14, 2000. At that meeting, Respondent was orally directed to report to the Board's MIS Copy Center (Copy Center) effective immediately until she "could meet with a medical doctor." This action was authorized by School Board Policy 6.171(4), which allows the Board to "require a physical, psychological, and/or psychiatric examination by a physician licensed in the state of Florida when in the School Board's judgment such an examination is relevant to the teaching performance or employment status or a School Board employee." Given Respondent's behavior, the transfer to a non-teaching position was also appropriate and necessary since Respondent was working with emotionally handicapped children. Accordingly, the Board arranged for an evaluation of Respondent by a Dr. Kendall on February 17, 2000; that physician recommended that Respondent be further examined by a psychiatrist. By letter dated February 24, 2000, the Board's Superintendent again directed Respondent to report to the Copy Center for temporary duty pending the results of the examination. The letter was hand-delivered to Respondent on February 25, 2000. Despite both orders, Respondent never reported to work at the Copy Center. Although she "came on campus" a couple of times, she never returned to work. She was later given another oral instruction by telephone on March 16, 2000, by the Board's Assistant Superintendent. By certified mail sent on April 13, 2000, the Board's Superintendent again directed Respondent to report to work, and he warned that if she did not do so by April 19, 2000, she would be subject to being terminated for being absent without leave, gross insubordination, and willful neglect of duties. Respondent received the letter the following day. Even so, she never reported to work. It is fair to infer from the evidence that Respondent was willfully absent from work without leave. On April 21, 2000, the Superintendent recommended to the Board that Respondent be terminated because of her "continuing intentional refusal to report to work despite repeated direct orders, reasonable in nature, and given by and with proper authority to do so." This recommendation was accepted by the Board at its meeting on May 8, 2000.
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 determining that Respondent is guilty of gross insubordination and being willfully absent without leave, and that she be terminated as an instructional employee for just cause. DONE AND ENTERED this 16th day of August, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 16th day of August, 2000. COPIES FURNISHED: Dr. R. Jerry Smith, Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Stephen W. Johnson, Esquire McLin, Burnsed, Morrison, Johnson, Newman & Roy, P.A. Post Office Box 491357 Leesburg, Florida 34749-1357 Brenda Armstead 32412 Crystal Breeze Lane Leesburg, Florida 34788 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Broward County School Board (School Board) is responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Meadowbrook Elementary School (Meadowbrook), Tropical Elementary School (Tropical), and Everglades Elementary School (Everglades)), and for otherwise providing public instruction to school-aged children in the county. For five years, beginning in 2004, Joseph Tamburino was the area coordinator of student services for the School Board's South Central Office (SCO), overseeing the activities of the office's five-person secretarial staff, as well as the approximately 70 "itinerant" school psychologists and school social workers assigned to work at schools within the SCO's service area. Among these schools were Meadowbrook, Tropical, and Everglades. Respondent has been employed by the School Board as a school social worker since September 2000. She presently holds a professional services contract. From 2004 until August 2009, Respondent worked out of the SCO under the immediate supervision of Mr. Tamburino. During this time, she never received less than a satisfactory annual performance appraisal from Mr. Tamburino; however, in the "comments" section of the last appraisal he gave Respondent (for the 2008-2009 school year), Mr. Tamburino did write, "Jessica should work on improving absenteeism and performance issues such as task completion, timelines and adhering to work hours." During the 2006-2007 school year, Mr. Tamburino "beg[a]n to have problems" with Respondent's being where she was supposed to be during the school day. These "problems" persisted, despite Mr. Tamburino's efforts to address them at meetings with Respondent and in written correspondence he sent her. Following the end of the 2006-2007 school year, Mr. Tamburino issued Respondent a "Letter of Reprimand," dated August 14, 2007, which read as follows: This correspondence is submitted as a formal reprimand for your failure to follow office procedures. This is the second occasion that I have had to meet with you regarding not being present at your assigned schools for the full workday. We met on February 1, 2007 because you were not in your assigned schools for the full workday (7.5 hours) over a period of five days. Furthermore, we met on June 1, 2007, because you were not in your assigned schools during the hours you were required to be present on May 4 and May 24, 2007. Know and understand that this behavior cannot and will not be tolerated by this administration. You are hereby directed from this point forward, to comply with all administrative directives. Failure to comply will result in further disciplinary action such as a referral to Professional Standards and the Special Investigative Unit, suspension or termination. Your signature evidences receipt of and an understanding of this document. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. Ten days after evidence of your knowledge of this correspondence, it will become public record. Respondent signed this "Letter of Reprimand" on August 14, 2007, signifying that she had "read and underst[ood] [its] contents." Less than four months later, Mr. Tamburino issued Respondent another "Letter of Reprimand," which was dated December 7, 2007, and read as follows: This letter is submitted as a formal reprimand for your continued failure to follow office procedure and falsification of records. On November 8, 2007 you were not in your assigned school for 7.5 hours. You called the South Central Student Services office and reported that you were leaving New River Middle School at 4:00 p.m. However, you were seen at a store at a shopping plaza at 3:00 p.m. Although you did not work a full day on November 8, 2007, you falsely reported to a Student Services secretary that you finished your workday after 7.5 hours. This is the second written reprimand that you have received within the last four months for failure to follow office procedures and falsification of records. This behavior cannot and will not be tolerated. You are directed to comply with office procedures, work your full 7.5 hour day, and sign in and out with accurate times. Failure to comply will result in further disciplinary action. Your signature evidences receipt of and an understanding of this document. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. Ten days after evidence of your knowledge of this correspondence, it will become public record. Respondent signed this "Letter of Reprimand" on December 17, 2007, signifying that she had "read and underst[ood] [its] contents." Respondent did not file a grievance "specifically challenging" either the August 14, 2007, "Letter of Reprimand," or the December 7, 2007, "Letter of Reprimand." On March 17, 2008, Dr. Tamburino sent a memorandum to Respondent, which read, in pertinent part, as follows: As you are aware, we have had two recent meetings that have included discussions of following office procedures, the provision of social work services and collaboration with the community liaison and other personnel. On February 1, 2008 we had a meeting with Jerrod Neal from BTU and Ellen Williams, the Social Work BTU Steward. We examined possible discrepancies between dates listed for home visits on a log at New River and your November mileage voucher. Although there were L-panel entries to verify the home visits, there was inconsistent documentation of the addresses on the mileage voucher. However, you decided to withdraw your request for mileage reimbursement. Suggestions to improve your work performance were discussed. These include the following: * * * - Specific time of the home visits, including leaving and returning to campus, need to be documented. During the 2008-2009 school year, Respondent was assigned to provide school social work services at three schools: Meadowbrook, Tropical, and Everglades. She was supposed to be at Meadowbrook on Mondays, Tropical on Wednesdays, and Everglades on Thursdays. On Tuesdays, she went to whichever of the three assigned schools "need[ed] [her]," and she also did "home visits." Fridays were designated as "office days." On these "office days," Respondent was expected to do "paperwork" that needed to be completed. Respondent was allowed to use office space at Meadowbrook as her "Friday office" instead of going to the SCO (which was farther from her residence than was Meadowbrook). Respondent missed a considerable amount of work during the 2008-2009 school year due to her daughter's, as well as her own, health-related issues, "exhaust[ing] her sick leave" before the year was half over. (By December, she "didn't have any sick days" left.) Respondent and the other school social workers and school psychologists working out of the SCO were required to notify the office's secretarial staff, by telephone (or in person, if at the SCO), of their whereabouts whenever they arrived at or left a work-related destination during the school day (Call In Office Procedure). It was the duty and routine practice of the secretarial staff, upon receiving such a call, to enter the information provided by the caller concerning the caller's location (as well as the date and time the call was received) on an "online call-in log" (Call Log) maintained by the SCO so as to have a record of these calls. The Call In Office Procedure and other "[o]ffice [p]rocedures" were discussed in a document entitled, "Office Procedures: 2008-2009 School Year," which Mr. Tamburino provided "[a]ll the South Central Office . . . [p]ersonnel," including Respondent, at the very beginning of the 2008-2009 school year. The document read, in pertinent part, as follows: Attendance is reported daily by Joyce [Doe] (social workers) . . . to the payroll department. You must call Joyce . . . prior to taking any leave (e.g., personal, sick, other.) You must call each day you are taking sick leave (unless otherwise arranged with the Area Coordinator [Mr. Tamburino]). Call the office twice daily, when you arrive at your location and before you leave for the day (for example, for most elementary schools by 7:30 AM, and 3:00 PM). You should call from a school telephone. If you do not call in, you may be considered absent. You are expected to be in your assigned school 7.5 hours (same work hours as the teachers). If you leave a school for another destination, be sure to inform personnel at school and one of the secretaries in our office. When you are at the Area Office, please be sure that our secretaries log you in. A schedule of team meetings is provided at the beginning of each year. Attendance at all scheduled team meetings is mandatory. A planning day is a 7.5 hour workday. * * * Mileage vouchers must be submitted within 30 days after the end of the month per the Superintendent. Use the exact mileage to schools listed in SCA mileage chart. Requests for more than one month may not be approved. * * * You must request and obtain an approved TDA [Temporary Duty Authorization] from the Area Coordinator when performing duties in a different location other than your regular assignment. TDA request forms should be completed 10 days prior to the workshop/event. Return to the office at least once a week to handle office duties. The Area Coordinator monitors the quality of your work and evaluates your performance at least annually. The Area Coordinator makes all school assignments. In addition to having to follow these SCO "[o]ffice [p]rocedures," Respondent and her fellow "itinerant" workers, when they were at their assigned schools, were "under [the] direction" of the school's principal and had to do what the principal "dictated." During the 2008-2009 school year, the principal of Meadowbrook "wanted her ['itinerant'] employees to sign in/sign out when they came on [and when they left] campus," and there was a "sign in/sign out" sheet posted at the school for "itinerant" employees to sign, date, and note their "time in" and "time out." Respondent "knew" of Meadowbrook's "sign in/sign out" "procedure," and routinely complied with it (when she was actually at the school that school year). Respondent was not present, and therefore did not "sign in," at Meadowbrook on any of the following dates: Friday, October 3, 2008; Friday, October 31, 2008; Friday, January 9, 2009; Friday, February 6, 2009; Friday, February 13, 2009; Friday, February 20, 2009; and Monday, February 23, 2009. Nonetheless, she telephonically reported to the SCO secretarial staff that she was at Meadowbrook on each of these days (as reflected by the entries made on the Call Log), obviously knowing this information to be false.4 February 4, 2009, was a Wednesday, the day Respondent was supposed to be at Tropical. On that day, Respondent telephoned the SCO secretarial staff at 8:05 a.m. to report she was at Tropical, and called back at 5:56 p.m. to advise that she was leaving the school (as reflected by the entries made on the Call Log). In fact, Respondent was not at Tropical during the school day on February 4, 2009.5 Her reporting otherwise was a knowingly-made false misrepresentation. March 20, 2009, was a Friday and thus an "office day" for Respondent. Respondent had made arrangements to attend a conference that day. In accordance with the "Office Procedures: 2008-2009 School Year" that Mr. Tamburino had handed out at the start of the school year, Respondent had "request[ed] [on February 25, 2009] and subsequently obtain[ed] [on March 16, 2009] an approved TDA" from Mr. Tamburino to go to the conference (instead of doing the work she was "regular[ly] assign[ed]"). Respondent, however, did not go to the March 20, 2009, conference.6 Nonetheless, at 8:40 a.m. on March 20, 2009, she falsely and deceptively reported to the SCO secretarial staff over the telephone that she was on her "temporary duty" assignment (at the conference). At no time that day did Respondent advise the SCO secretarial staff that she was at her regular "Friday office" location, Meadowbrook,7 or that she was leaving that location (to pick up her sick daughter at school, or for any other reason). Furthermore, Respondent's leave records reveal that she did not take any type of leave that day. (Had she taken leave to care for her sick daughter that day, it would had to have been unpaid leave because she had no paid leave time left.)8 To receive reimbursement for non-commuting "travel expenses [she claimed she incurred] in the performance of [her] official duties" as a school social worker (that is, for mileage in excess of the 22.6 miles from her home to her office (at Meadowbrook) and back, reimbursed at a rate of 55 cents per mile, plus parking and tolls), Respondent had to submit mileage vouchers (on School Board Form 3042, Revised 09/05) to Mr. Tamburino for his approval.9 Respondent certified, by her signature on the forms, that her "claim[s] [were] true and correct" and that the "expenses [claimed] were actually incurred by [her]." Among the mileage vouchers she submitted were those covering the months of January 2009 (January Voucher) and February 2009 (February Voucher). There were entries on both the January and February Vouchers that were inconsistent with what Respondent had telephonically reported to the SCO secretarial staff concerning her whereabouts on the dates for which these entries were made (as reflected by the entries made on the Call Log). On the January Voucher, for Tuesday, January 6, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, January 6, 2009, she had telephonically reported to the SCO secretarial staff that she was first at Meadowbrook, then at the SCO, and finally on a home visit. On the January Voucher, for Friday, January 9, under "Places Visited," Respondent put, "Home to Meadowbrook" (a trip of 0 "Net [Reimbursable] Miles"), "Meadowbrook to KCW [School Board headquarters]" (a trip of 5.3 "Net [Reimbursable] Miles"), "KCW to Everglades" (a trip of 17.7 "Net [Reimbursable] Miles"), and "Everglades to Home (a trip of 14.3 "Net [Reimbursable] Miles"); however, on the day in question, January 9, 2009, she had not reported to the SCO secretarial staff that she was at Everglades any time that day. (She had only reported being at School Board headquarters and at Meadowbrook.) On the January Voucher, for Tuesday, January 20, under "Places Visited," Respondent put, "Home to Everglades to Home" (a trip of 28.6 "Net [Reimbursable] Miles"); however, on the day in question, January 20, 2009, she had reported to the SCO secretarial staff that she was first on a home visit and then at Everglades. On the February Voucher, for Tuesday, February 3, under "Places Visited," Respondent put, "Home to Everglades to Home" (a trip of 28.6 "Net [Reimbursable] Miles"); however, on the day in question, February 3, 2009, she had not reported to the SCO secretarial staff that she was at Everglades any time that day. (She had only reported being at Meadowbrook and on a home visit.) On the February Voucher, for Friday, February 6, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, February 6, 2009, she had reported to the SCO secretarial staff that she was first on a home visit, then at Meadowbrook, and finally at the SCO. On the February Voucher, for Friday, February 13, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, February 13, 2009, she had not reported to the SCO secretarial staff that she was at the SCO any time that day. (She had only reported being on a home visit and at Meadowbrook.10) On the February Voucher, for Wednesday, February 4, under "Places Visited," Respondent put, "Home to Tropical to Home" (a trip of 9.8 "Net [Reimbursable] Miles"). Unlike the other entries on the January and February Vouchers discussed above, this entry was entirely consistent with what Respondent had telephonically reported to the SCO secretarial staff concerning her whereabouts on that day; however, as noted above, she had not been truthful in making such a telephonic report to the SCO secretarial staff. It was Mr. Tamburino's responsibility to check all of his subordinates' mileage vouchers, including Respondent's, "for accuracy" before approving them. Because "there [were] discrepanc[ies] between what was on the [January and February] [V]oucher[s] and what was on the [C]all [L]og," Mr. Tamburino did not approve these vouchers. Instead, he "forward[ed] the mileage voucher issue to the [School Board's Office of Professional Standards and Special Investigative Unit] for investigation."11 On or about April 23, 2009, Respondent was provided a Notice of Investigation (dated April 17, 2008), which read as follows: This correspondence is provided as formal notice of investigation into a complaint received in this office regarding allegations that you falsified records. You will be contacted in the near future for the purpose of giving a statement. You have the right to representation through all phases of this investigation. You are directed not to engage the complainant, or any student witness, or any other witness in any conversation regarding the matter under investigation. A violation of this directive could result in disciplinary action for insubordination. Questions regarding the status of this investigation are to be directed to Joe Melita, Executive Director of Professional Standards & Special Investigative Unit at (754)321-0735. This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file will be part of your personnel file and will be public record and it will become available for inspection by the public ten (10) days after completion of the investigative process. Investigator Johanna Davidson was the School Board employee in the Office of Professional Standards and Special Investigative Unit who conducted the investigation. As part of her investigation, Investigator Davidson took a sworn statement from Respondent on June 4, 2009.12 In her sworn statement, Respondent told Investigator Davidson, among other things, that she arrived at Meadowbrook at "around 8:00" a.m. on March 20, 2009, and stayed there "all day"13; that she "knew that [signing-in] was the procedure" at Meadowbrook; that this "procedure" had been in place for the past year and a half; that she signed in at Meadowbrook "99 percent of the time"; that she "may have missed one or two sign-ins" at Meadowbrook, but she did not "think [she] had"; and that she is "a very procedure and policy oriented person," so it would have been "odd" had she not signed in at Meadowbrook, even during the time, from January to April 2009, when she had been "on crutches."14 When asked by Investigator Davidson "what happened that day, February 4, 2009," Respondent made no mention of having been in the teacher's lounge at Tropical (where, in her testimony at the final hearing, she falsely claimed she had been the entire school day on February 4, 2009, leaving only once to go to the bathroom across the hall). Rather, in response to Investigator Davidson's inquiry, she suggested that this day (February 4, 2009) might have been one of the many days that school year that she had "taken off" because of health-related issues and that she had not "communicated properly" concerning her having "taken off" that day. Investigator Davidson completed her investigation and issued an Investigative Report detailing her findings in late June 2009. Investigator Davidson's Investigative Report contained a section entitled, "Summary of Investigation," the first paragraph of which read as follows: A Personnel Investigation Request pertaining to School Social Worker Jessica Harrison was received in the Office of Professional Standards & Special Investigative Unit. Ms. Harrison was accused of Falsification of Records stemming from the following alleged incidents: Ms. Harrison allegedly submitted a Temporary Duty Authorization (TDA) request to attend a conference but did not attend the conference, and allegedly reported to the South Central Area Student Services office that she was in attendance. Two of Ms. Harrison's assigned schools reported that Ms. Harrison was not in attendance on several days. Ms. Harrison allegedly did not report her absences to the South Central Area Student Services office. Ms. Harrison allegedly falsified mileage vouchers. The information that Investigator Davidson had obtained supporting these allegations was detailed in succeeding paragraphs of this section. (It was this information upon which the "[s]pecific [c]harges" in the instant Administrative Complaint were based.) The School Board's Professional Standards Committee met on September 9, 2009, to consider the results of Investigator Davidson's investigation and "found probable cause of falsification of records" warranting Respondent's termination. On September 16, 2009, Craig Kowalski, the Acting Executive Director of the School Board's Office of Professional Standards and Special Investigative Unit, sent Respondent a letter, which read as follows: The Professional Standards Committee met on September 9, 2009, and found probable cause of falsification of records. The Committee has recommended termination. Please be advised by way of this correspondence that you have been scheduled for a pre-disciplinary conference on Monday, October 5, 2009, at 11:00 a.m. in my office, which is located on the third floor of the Technical Support Services Center, 7720 West Oakland Park Boulevard, Sunrise, Florida. You have the right to representation at this conference. If for some reason you are unable to be present at this conference you must contact my office by 4:00 p.m. on Thursday, October 1, 2009. You have previously been furnished with a full report. You are not to disseminate these documents to the public and/or media since it may contain protected information. If you have a representative, it is your responsibility to furnish him/her with copies of your documentation. Your failure or refusal to appear at this conference will be considered a waiver of this procedural requirement. A copy of the Special Investigative Unit report and this letter are being forwarded to the Professional Practices Department of the State Department of Education to determine if certificate disciplinary action is warranted. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file is now a part of your personnel file and is a public record and it will become available for inspection by the public ten (10) days from receipt of this letter. Any request made by the public for the documentation referred to above will be provided in accordance with the laws of the State of Florida. Questions regarding this correspondence are to be directed to my office (754)321-0735. The "pre-disciplinary conference" was held on October 5, 2009, as scheduled. Present at the conference were Mr. Kowalski; Carmen Rodriguez, Esquire (on behalf of the School Board); Respondent; and Jerrod Neal of the Broward Teachers Union, whom Respondent had asked to speak on her behalf. Prior to the conference, Respondent had received, and had had the opportunity to review, Investigator Davidson's Investigative Report. During the conference, Respondent affirmatively adopted the admission made by her representative at the meeting, Mr. Neal, that she had engaged in the "falsification" of which she was being accused (as described in the Investigative Report). The following is a verbatim recitation of what was said at the October 5, 2009, "pre-disciplinary conference": MR. KOWALSKI: This is a pre-disciplinary hearing for School Board employee Jessica Harrison. We are here pursuant to an investigative report dated June 30th, 2009. This investigation was based upon allegations of falsification of records. The Professional Standards Committee has reviewed this matter and has made a recommendation for disciplinary action. The disciplinary action is for termination. Have you received a copy of the investigative report? MS. HARRISON: Yes. MR. KOWALSKI: The purpose of this pre- disciplinary conference is to give you the opportunity to bring forward any additional matters that you believe should be considered before final decision as to disciplinary action is reached. Such matters include any additional evidence, witnesses or any matter that you believe should be considered. This is also an opportunity to say anything which you believe should be considered on your behalf. I am going to ask you if you identify additional witnesses, please identify what you believe the witness knows or would testify to or what the witness can contribute to this investigation. Do you understand the purpose of this meeting? MS. HARRISON: Um-hm. Yes. MR. KOWALSKI: Is there anything you wish to say, do you have any additional matters that you believe should be considered.? MR. NEAL: Let me speak on her behalf, because I think Ms. Harrison has pretty much said a lot of things at the Professional Standards Committee meeting. Since we've talked, since the information that was gathered during the investigation, I have really had a chance to look over it, I was really surprised by the recommendation of termination. Not eliminating what happened, because what happened as far as falsification of records, it was done. But circumstances surrounding it, I don't think it really warrants termination, considering that it is not an easy thing when you're going through a lot of personal problems. Once again, it doesn't justify what was done. But I think under the circumstances, decisions were made with not a lot of clear thought, and I really believe that Ms. Harrison's intention, from what I have known over the last couple of years, have always been good. I just think it's a matter of the things that she was actually going through. She should have brought them to the forefront earlier so there could have been a better understanding of what was going on, not an excuse for it, but a better understanding for what was going on. And you know, I would not be in my duty if I don't mention the fact that there has been so much, or so many other things that have been done through the district that should have warranted termination and people were not terminated. And I just think this is a situation where termination is to the extreme. Whereas some sort of punishment should happen, but termination is just way too much for this situation, because I think in her state of mind as she is now, I don't think these mistakes will be made again. MR. KOWALSKI: Okay. Do you want to add anything Ms. Harrison? MS: HARRISON: I think he summed it up. MR. KOWALSKI: Okay. Thank you. We'll let you know the outcome. MR. Neal: Okay. About how long will that be. And he will let you know, so that means you will have to let me know once they let you know. MR. KOWALSKI: I have to meet with the Superintendent, and so within two weeks. MR. NEAL: Okay. Until then you just go back to doing what you have been doing. MS. HARRISON: Okay. MR. NEAL: All right. Appreciate it. Ms. RODRIGUEZ: Thank you. Mr. NEAL: Thank you. (emphasis supplied).15 The plea for leniency that Mr. Neal made on behalf of Respondent proved to be unsuccessful. On October 30, 2009, Broward County Superintendent of Schools Notter issued an Administrative Complaint recommending that Respondent be terminated for the "falsification" of attendance records and mileage vouchers described in Investigator Davidson's Investigative Report (conduct that Respondent had admitted, at the October 5, 2009, "pre-disciplinary conference," she had engaged in).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Broward County School Board issue a final order terminating Respondent's employment as a professional service contract school social worker with the School Board for the reasons set forth above. DONE AND ENTERED this 18th day of November, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2010.
Findings Of Fact The Respondent, Steven T. George, began teaching in the Bay County school system in the fall of 1977. He was employed as a physical education teacher and as a coach. The Respondent has had an exemplary record as an instructional employee of the Bay County School Board until he encountered personal problems during the 1988-89 school year. During the 1988-89 school year, he was employed as a physical education teacher and assistant football coach at Mosley High School. During that school year, his supervisor, Assistant Principal Sarah Cooper, observed his performance deteriorate unexpectedly and in a way which was out of character from his previous level of performance and demeanor. She found occasions when he was not properly supervising his class and when he had not done lesson plans, as required by the school administration. Ms. Cooper had to assist the Respondent in developing a semester examination, however, he ultimately used an examination given to him by another teacher. Thereafter, he administered the examination but did not complete the grading of it and failed to complete his grade book, which responsibility was ultimately performed by Ms. Cooper. Additionally, during the 1988-89 school year, the Respondent was observed to become increasingly isolated from other members of the faculty. His behavior became characterized by unpredictability, excessive arrogance, argumentativeness, anger and verbal aggression, which was entirely different from the personality traits which he had exhibited and which his co-workers and supervisors had observed since he had been with the school system. Indeed, female teachers in the physical education department were reluctant to be alone in the workroom with him because of the advent of these objectionable personality traits. The Respondent, during this period of time, was undergoing a divorce, or the aftermath of one, which involved a very emotional custody dispute with his former wife concerning custody of their daughter. During the 1988-89 school year, he was observed to repeatedly burden his co-workers and school administrators with the details of his personal problems and to exhibit uncharacteristic and rather severe emotional outbursts of both anger and grief. After being counseled by his supervisors concerning what they believed to be rather bizarre behavior, when measured against his prior performance and demeanor in other school years, the Respondent ultimately voluntarily admitted himself to Charter Woods, a psychiatric treatment and evaluation facility. The Respondent spent approximately 5-1/2 months in that facility, underwent treatment in response to his supervisor's advice to "get some help", and returned to Mosley High School to complete the 1988-89 school year. For the remainder of that school year, the Respondent satisfactorily assumed and carried out all of his responsibilities and performed his work as a teacher in good fashion. His temperament and demeanor had returned to that of the friendly and caring teacher and co-worker which he had formerly been before his personal problems developed. His supervisor, Ms. Cooper, gave him a satisfactory annual evaluation at the conclusion of the 1988-89 school year. The Respondent's emotional difficulties and related performance difficulties as a teacher reappeared in the 1989-90 school year. During the pre-planning phase of his teaching and coaching duties for the 1989-90 school year, in August of 1989, the Respondent was observed to be very disruptive, argumentative, and, indeed, hostile to a visiting speaker at a seminar for instructional personnel. He was observed to repeatedly interrupt the speaker with arrogant, argumentative questions and comments, during the course of which behavior he was observed to be pacing back and forth at the rear of the room where the seminar was conducted while all other attendees at the seminar were seated and listening to the speaker. This arrogant, argumentative behavior was so apparent and so inappropriate for the seminar-type setting in which it occurred that his supervisor felt it necessary to apologize to the speaker at the lunch break on that day. Additionally, during this pre-planning phase of the school year, which is before the children arrive for the school year, the Respondent was observed to have difficulties in his dealings and relationships with other coaches arising out of his increasingly arrogant, argumentative attitude and behavior. Because of this and, inferentially, because his supervisors were aware of his emotional difficulties with which they had had experience the previous school year, the decision was made to relieve him as assistant football coach at Mosley High School. A meeting was held with the Respondent, Mr. Tucker, the Principal, and Mr. Cochran, the head coach, to explain that action to the Respondent and to explain to him that he would still continue as a physical education instructor. In the course of that meeting, the Respondent became very emotional, hostile, and argumentative. He exhibited frequent angry outbursts to the extent that he would not allow Mr. Tucker or Mr. Cochran to adequately explain the basis of the personnel action directed at him. The Respondent ultimately, angrily departed from the meeting before it was completed. On that same day, he left Mosley High School without administrative permission and went to Cherry Street Elementary School on some mission related to his daughter, who was a student at that school. She had been the subject of a bitter custody dispute between the Respondent and his former wife. He is accused of interfering with the operation of Cherry Street Elementary School on that occasion, although the record does not reflect what his conduct was at Cherry Street Elementary School that day. The 1989-90 school year then commenced at Mosley High School with the arrival of the students. The Respondent assumed his regular duties as a physical education instructor. He was observed, early in that school year, on a number of occasions, to fail to control behavior of students in his gym class and to fail to be in his gym class at appropriate times which amounted to inadequate supervision of his students on those occasions. His planning for his classes was observed to become sporadic, with repeated occasions when he failed to have lesson plans prepared. Also, in the fall of the 1989-90 school year, he was observed to forget his keys to the physical education area on a number of occasions. He would, on repeated occasions, forget, from one period in a school day to the next, what he was to teach that following period. He would have to be reminded by his colleagues. He would also forget to call his students in adequate time at the end of the physical education period for them to dress for their next classes. He had to be reminded by his colleagues to do this. He would also repeatedly forget when he had extra duty, such as "door duty" and locker room assignments. His general level of cooperativeness with his colleagues declined markedly. His behavior became harsh and rude to his colleagues and to students. He was observed to be very harsh and rude to a new student coming into his physical education class and spoke loudly, in an abrasive manner to the student in front of the class, embarrassing that student. These problems occurred repetitively and in rapid succession during the first month of the school year in September of 1989. Because of the nature of the problems, the past history of the Respondent's emotional instability whereby he had lost his ability to be a caring, productive, well-performing teacher (which had been his unblemished record of behavior and performance for all the years he taught prior to the 1988-89 school year), Mr. Tucker, the Principal, felt that he had to act quickly to prevent an even worse situation occurring in the 1989-90 school year when he observed that the Respondent's emotional instability of the year before was recurring. Consequently, Mr. Tucker requested that the superintendent, Mr. Simonson, meet with the Respondent in an effort to resolve his difficulties in the matter of his perceived emotional instability and resulting declining performance. Accordingly, a meeting was held with the Respondent, Mr. Simonson, and Mr. Tucker on September 30th. At the meeting, the Respondent was confronted with the fact of his displayed emotional instability and related declining teaching performance, at which point he became very belligerent and hostile. He was, alternatively, on the verge of tears and shouting in anger. Because of the above-stated reasons for the meeting and because of the emotional instability which was so apparently displayed by the Respondent during the meeting, Mr. Simonson gave the Respondent three days of sick leave to allow him to remain at home and get some professional attention to try to regain his emotional stability before returning to the classroom. The Respondent's problems persisted, however. Although the precise date is uncertain, at approximately this time, the Respondent announced that he was going to seek election as Superintendent of the Bay County school system in opposition to Mr. Simonson. The Respondent testified himself that he elected to run for this office while he was still a teacher at Mosley High School in part, at least, to save his job because he believed that the Bay County school administration and particularly, Mr. Simonson, would be reluctant to discharge him while he was a political candidate in opposition to Mr. Simonson because of the bad impression that might make on the electorate. Shortly after he made this announcement, again on an undetermined date in the fall of 1989, the Respondent was involuntarily hospitalized pursuant to the "Baker Act", Section 394.467, Florida Statutes. Apparently, the Respondent's family members had him committed although the precise reasons are not of record. The Respondent expressed the belief at hearing that his family members had him committed because of his announcement to run for Superintendent, although that is not established to be the case. The Respondent, at the time he was committed, believed that he did not suffer from a mental condition justifying his commitment pursuant to the Baker Act. The Respondent has since come to understand that he suffered from a manic-depressive condition, also known as a "bi-polar disorder". As a result of this eventuality, Mr. Simonson determined that the Respondent should not be teaching in the school system during such a period of emotional instability. In order to be fair to the Respondent, he did not want to actually suspend him from his duties. Accordingly, Mr. Simonson elected to place the Respondent in the status known as "overused sick leave", which means that the Respondent, although he had used up all of his annual and sick leave, could still be carried on the personnel records as an employee in terms of retaining his retirement and insurance benefits, although he was not paid for the time he was absent from his duties as a result of this decision and as a result of his emotional condition. Accordingly, the Respondent was, in this fashion, removed from his instructional duties and from his job site in the fall of 1989, after his involuntary commitment, pursuant to the Baker Act. Thereafter, in the fall of 1989, the Respondent obtained treatment at the "Life Management Center" in Bay County under the care of Dr. Nellis. Dr. Nellis diagnosed the Respondent as suffering from manic-depression and prescribed Lithium to treat his manic condition. The Respondent responded well to treatment, such that Dr. Nellis, late in the fall of 1989, opined that he was fit to return to work as a teacher. The Respondent apparently accepted the fact of his illness, continued taking his medication after being released by Dr. Nellis, and was returned to his duties with the Bay County school system at Rosenwald Middle School in late January or early February of 1990. Once again, he returned to his "old self", in terms of his adequate performance as a teacher, his emotional stability, good relationships with colleagues and students, and his prior demeanor as a genuinely caring teacher. His performance for the remainder of 1990 through the end of classes in June was good. He worked for the remainder of that school year as a physical education instructor, which is the field in which he is certified as a teacher. The Respondent had also been seen by Dr. Zumarraga beginning in November of 1989, who also found him to be manic-depressive, and who informed Mr. Simonson, by letter presented to Mr. Simonson by the Respondent, that the Respondent was taking medication for his illness and had exhibited acceptable behavior. As a result of those assurances by the Respondent's psychiatrist, Mr. Simonson had allowed the Respondent to return to work at Rosenwald Middle School in approximately early February of 1990. Apparently, sometime in late spring or early summer of 1990, the Respondent had doubts that he was still suffering from his condition and consulted another physician for an additional opinion. Apparently, he quit taking his medication sometime during the summer of 1990 as a result of that consultation. In late August of 1990, the Respondent returned to Rosenwald Middle School as a physical education instructor. Ms. Love, who had been Assistant Principal at the school, had moved up to the position of Principal. In the spring of 1990, the Respondent had been quiet and cooperative, had gotten along well with colleagues and students, and had performed his duties well, after undergoing treatment and being placed on a program of medication for his manic- depressive disorder. In the fall, however, he was immediately observed by Ms. Love and others of his colleagues and supervisors to have reverted to the arrogant, abrasive and extremely assertive attitudes and behavior, which he had exhibited in the fall of 1989, prior to securing treatment. Before these attitudes and behavior had manifested themselves, however, and immediately upon the start of the 1990-91 school year, given his long and worthwhile experience in the physical education field in the county system, Ms. Love asked the Respondent if he would work on a plan for a "middle school olympics" athletic event. The Respondent agreed to do this and immediately began setting about the formulation of a plan whereby all of the middle schools in the county would participate in the olympics athletic event on a given day at Tommy Oliver Stadium. He arrived at a plan to accomplish this and drafted it in memorandum form. Instead of sharing it with Ms. Love, however, he transmitted it directly to the Superintendent, Mr. Simonson. This was a departure from appropriate procedures for the planning of such events because the Respondent did not transmit his plan to Ms. Love for her initial approval before its being communicated to supervisory personnel at the county district level. The Respondent became somewhat obsessed with the idea of planning and conducting the olympics event, devoting an inordinate amount of time and energy to it. In early September, the Respondent brought a student to the office for disciplinary reasons asserting that he had caught the student stealing or "going through the lockers". Upon questioning of the Respondent by Ms. Love, it was learned that he did not find the child in the locker room or dressing room actually invading lockers, but found him in the locker room area where he was not supposed to be. He accused the child of stealing or attempting to steal when he had not actually observed him do this. The Respondent was criticized in this action for not having actually observed the child stealing and yet accusing him of it and for having brought prior behavior of the child up in his disciplining of the child, which Ms. Love felt to be inappropriate. In fact, the Respondent had some justification for suspecting this particular child of wrongful conduct or illegal activity because of past disciplinary violations committed by the child of a similar nature. At approximately the same period of time, in early September, the Respondent was observed to have grabbed a child by the arm in the act of admonishing the child for some alleged miscreant behavior and stating that "I am going to break your little arm". Ms. Love counseled the Respondent about these two instances and gave him an "improvement notice" on September 7, 1990 concerning them. An improvement notice is a disciplinary memorandum or report to a teacher such as the Respondent by which the Principal admonishes a teacher for inappropriate behavior and directs steps for improvement of the situation which led to that criticized behavior. On September 14, 1990, Ms. Love had another formal conference with the Respondent, since she had seen his arrogant, abrasive, overly-assertive behavior with colleagues and students continuing. She discussed with him his inappropriate behavior towards students and faculty and the matter of the Respondent's disciplinary referral of a student to the guidance counselor. He had referred a student to the guidance counselor for discipline and had been overbearing and abusive to the guidance counselor in his communication with her concerning the disciplinary referral. Ms. Love counseled him about the basic procedures involved in referring students for discipline, which specifically do not involve the guidance counselor. Rather, disciplinary referrals should appropriately go to the administration of the school, as delineated in the teacher's handbook, which the Respondent had previously been provided. Additionally, Ms. Love felt that the Respondent had exhibited a pattern of not turning in required documents in a timely manner; therefore, she gave him an improvement notice for these matters dated September 28, 1990. In fact, however, it was not established by the Petitioner that the Respondent had been untimely in turning in any required documents, reports, and the like, other than one report which had been due on a Friday, when he was absent due to illness and which he promptly turned in on the following Monday. During the fall of 1990, the Respondent was observed to frequently share details of his custody dispute and problems concerning his child and problems with his wife or former wife through notes, letters and conversations with other members of the staff in an inappropriate manner. He appeared to be emotionally preoccupied with these personal problems while on duty. On the third day of school in the fall of 1990, Mr. Simonson located his office temporarily at Rosenwald Middle School. He had done the same thing at other schools in the county that were having disruptions caused by on-going construction during the fall. Rosenwald Middle School at this time was undergoing construction work, including work on its air-conditioning system, such that many of the students and teachers did not have the benefit of air- conditioning. Mr. Simonson, therefore, elected to spend a day or so at Rosenwald Middle School on a sort of "Bob Graham Work Day". Ms. Love announced that fact over the public address system during the morning announcements on that day. The Respondent came to Ms. Love's office a short time later carrying the school's daily bulletin in his hand. He seemed hostile and agitated, leaned over her desk and shook the bulletin in her face, stating to her that he wanted her to sign on the bulletin her name and the statement she had made about the reason the Superintendent was at the school on that day. He further stated to her, in effect, that he was "fixing to be fired" and that he wanted Ms. Love to admit and put in writing on the face of the morning school bulletin the real reason, as he felt it, why the Superintendent was at the school that day. Ms. Love refused to do this and considered this behavior to be bizarre and threatening, given that the Respondent obviously felt that the Superintendent had been on campus that day to "spy on him". During late September of 1990, the school embarked, at the behest of Ms. Love and other administrators and teachers, on a "school spirit week" contest. The contest involved decorating the doors of the classrooms by the students, using as themes for the decorations certain words which denoted various aspects of "school spirit". The doors were to be decorated during "trust class time". "Trust classes" are classes which meet for approximately fifteen minutes or so at the outset of the school day, somewhat analogous to what is commonly known as "homeroom classes". The students were allowed to decorate the doors during their trust class time. Ms. Love accused the Respondent of keeping students overtime in their trust class, which required them to miss part of their next class and be tardy to that class in order to decorate his room door. In fact, she gave him an "improvement notice" in the nature of a reprimand for this on September 28, 1990. It was not proven, however, that the Respondent had actually kept students late at his behest for this purpose. In fact, his testimony is that he required no students to stay in his trust class working on door decorations after the time for the trust class to be over and instructed them to obtain permission from their other teachers should they elect to stay overtime to decorate the doors. The Hearing Officer having weighed the testimony, candor and credibility of the witnesses on this issue, including the ability of the witnesses to have knowledge of the facts concerning the time and methods employed to accomplish the door decoration effort, this violation of school procedures was not proven. The door decoration contest was judged on September 28, 1990 and the Respondent's class did not win. The Respondent became very agitated and angry at this result to the point of requesting and obtaining a meeting with Ms. Love concerning it. His temper and emotions were out of control on this occasion. He behaved in a loud, abrasive, and angry manner, even to the point of alternately crying, shaking, and shouting. He accused Ms. Love of penalizing his children by denigrating their efforts in the door decoration contest in order to hurt him, claiming that her actions really were a personal vendetta against him in the course of which the children were victimized. In the midst of his emotional outburst concerning this matter, he refused to listen to any explanation which Ms. Love attempted to give him but repeatedly interrupted her efforts to explain how the contest was judged and its rules. He even attempted to call a newspaper concerning the incident. He was inordinately obsessed with the conduct of the contest and with the result. As this incident with Ms. Love was progressing, Corporal Lassiter, the school Resource Officer, observed and heard part of it. In his view, having observed the behavior of the Respondent on this occasion and being aware of the Respondent's past history, Mr. Lassiter considered the possibility of initiating an involuntary Baker Act hospitalization at that moment, because of the Respondent's behavior. During the course of this confrontation with Ms. Love, Mr. Lassiter or others persuaded the Respondent to step across the hall to a different office to calm down. After he went into the other office with Mr. Lassiter and another administrator, Mr. Barnes, the Respondent's behavior continued to be somewhat bizarre. His demeanor toward Mr. Lassiter and Mr. Barnes alternated from being very angry and upset with them to calling them, and acting toward them, as though they were good friends. At one point, he told Mr. Lassiter that when he got elected Superintendent, all would hear about this incident in the newspaper and the reasons for it all "would become very clear". He stated then that Mr. Lassiter and Mr. Barnes would have good employment positions with him when he became Superintendent. Alternatively, before making these statements and also after making these statements, he became angry and hostile to both men, saying, in essence, that they were "all against me", becoming accusatory toward them and asserting, in essence, that Mr. Lassiter, Mr. Barnes, Ms. Love, and others in the administration were seeking to do him harm. Partly at the instance of Mr. Lassiter, the Respondent finally calmed down sufficiently to accede to Mr. Lassiter's recommendation that he call a substitute to take over his classes for the remainder of the day. A substitute was called and Mr. Lassiter then escorted the Respondent to his truck in order to see that he was removed safely from the campus without further incident with colleagues or students. As the Respondent was getting into his truck, preparing to leave the campus, he told Mr. Lassiter to "tell Ms. Love that she can kiss my ass". Teachers are required to be at Rosenwald Middle School by 7:30 a.m. The first bell rings at 7:37 a.m., and the "trust class" begins at 7:45 a.m. On approximately six occasions during September of 1990, Ms. Love had to sit in on the Respondent's trust class because he was late arriving at his class. She gave him an improvement notice concerning this deficiency on September 28, 1990. Additionally, on two separate occasions, Mr. Lassiter handled the Respondent's trust classes when he was late. The next school day after the incident concerning the door decoration contest on September 28, 1990 was October 1, 1990, a Monday. The Respondent was approximately 20 minutes late to school that day. Ms. Love, being concerned about the ramifications of the behavior she had witnessed in the Respondent the preceding Friday, met with the Respondent when he arrived at school for purposes of determining his state of mind and to talk to him about his tardiness. She found him still agitated, although not as much as he had been on Friday, the 28th. He continued to accept no responsibility for those actions and for his tardiness. He denied even being late, and as a result, Ms. Love assigned the school Resource Officer, Corporal Lassiter, to accompany the Respondent whenever he had students with him for the remainder of the day. It should be pointed out, however, that on most of the occasions when the Respondent was tardy to his first class during September of 1990, it was because he did not have a key to fit his office and would have to look for another co-worker to let him in. He was given a key at the outset of the school year which did not fit. Consequently, he disposed of it, ordering another key, the provision of which to him was delayed for unknown reasons. Later that same day, the Respondent brought between 20 and 30 students to the office for being tardy to class. The procedure for handling tardies at Rosenwald Middle School is that if a child is tardy, a teacher counsels with the child at first. The parents are contacted, the child is assigned to "team detention", and a student misconduct form is forwarded to the appropriate administrator upon tardies becoming repetitive. It is unusual to bring a student to the Principal's office for tardiness. The Respondent explained when they arrived at the Principal's office that all of the students were late to class and that Ms. Love should do something about it. This was a departure from normal procedures in dealing with tardy students. It should also be pointed out, however, that the school administration had recently issued a memorandum admonishing teachers that they should deal more severely with tardy students. When this entire group of students proved to be tardy on the day in question, the Respondent volunteered, with the agreement of the other physical education teachers/coaches, to escort the students to the Principal's office for disciplinary reasons concerning their tardiness. The other teachers involved agreed. On that same occasion, on October 1, 1990, when the Respondent had the group of students waiting outside the Principal's office, he apparently had some sort of confrontation with a student named Malackai. Apparently, the student was arguing with him and denying being tardy, which was the reason he was brought to the office. The Respondent offered to wrestle the student after school and "tear him limb from limb". This action caused Mr. Lassiter to step between the Respondent and the student and to send the student to Ms. Love's office to prevent any further such confrontation. Although the student was large for his age, these actions by the Respondent intimidated the student. On that same day, the Respondent was giving a lesson in softball on the softball field. He was being observed by Mr. Lassiter at the time at the behest of Ms. Love, who was concerned about his emotional stability. During this lesson, the Respondent, for unknown reasons, began rather randomly talking about accidents, lions, the dangers of eating red meat, and some sort of discussion of suicide. When he observed a student not paying attention to him, he hit the student on the head with a clipboard. He then continued his rambling discussion. A few minutes later, the same child asked when they would be allowed to play softball; and the Respondent hit him with the clipboard again. The student got tears in his eyes and was intimidated by the Respondent's conduct. When Mr. Lassiter observed that the Respondent might be about to commit the same act for a third time, he stepped between the student and the Respondent in order to prevent this from happening again. Physical education teachers are required to supervise students by direct observation in their locker room where they dress out for physical education classes and then dress in their regular clothes again at the end of classes. This is necessary in order to prevent fights and horseplay in the locker room, which can be dangerous. On October 1, 1990, during the Respondent's period to supervise the boys' locker room, he attempted to telephone Mr. Tucker, the Principal at Mosley High School. While he was on the telephone, he left the locker room class unsupervised and was unable to observe and supervise the locker room from the location of the telephone in the coach's office. On October 2, 1990, the Respondent again left his physical education class unsupervised while he was talking on the telephone for some 15-20 minutes. During the month that the Respondent had worked with Mr. Kent in the physical education department, Mr. Kent felt that although the Respondent generally had handled his duties well, he had spent an excessive amount of time on the telephone, rather than being in his assigned area. October 2, 1990 was the Respondent's last day of employment with the Petitioner. He was suspended with pay and shortly thereafter, the School Board met and accepted the Superintendent's recommendation to suspend the Respondent without pay based upon the conduct described in the above Findings of Fact occurring in August and September of 1990. The Board took the positions that this conduct amounted to gross insubordination, willful neglect of duty, and misconduct in office. In the Amended Administrative Complaint, on which this matter proceeded to hearing, which was filed on July 30, 1991, the factual allegations of the Complaint assert that the suspension action was taken based upon "alleged gross insubordination, willful neglect of duty, and misconduct in office"; however, the Amended Complaint actually charges that the factual allegations set forth in the Amended Complaint violate Section 231.36, Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code, concerning misconduct in office allegedly so serious as to impair the Respondent's effectiveness in the school system and charges incapacity (as a subset of incompetency) alleging violations of Rules 6B-1.001, 6B-1.006, and 6B-4.009, Florida Administrative Code. Thereafter, after the suspension occurred, the Respondent was involuntarily hospitalized pursuant to the Baker Act on the day following an apparent arrest for DUI, fleeing or attempting to elude a police officer, and having a concealed firearm. The Respondent was convicted of none of these charges but, rather, pled nolo contendere to a reduced charge of reckless driving and to a misdemeanor weapons charge. Adjudication of guilt was withheld. In fact, the weapon which the Respondent had in his car was believed by him to be legally possessed since it was merely the 22 pistol with which he used blanks for training his bird dogs. The pistol happened to be on the floorboard of his car when he was arrested by the officer. The Respondent spent a short period of time at Bay Medical Center, pursuant to involuntary Baker Act commitment on this occasion. Also, in 1990, at an undetermined time in the fall, he voluntarily admitted himself to the Rivendell Psychiatric Center for approximately 2-1/2 weeks in order to receive additional evaluation because he was unsure whether he was actually manic-depressive or not. Thereafter, while still suspended from his employment, in May of 1991, the Respondent apparently had an argument with his parents at their home in Bonifay and then left their home to return to his own home in the vicinity of Panama City in Bay County, Florida. Rumors apparently were communicated to law enforcement officials to the effect that the Respondent had threatened to kill his parents and had left their home with a high-powered rifle and was journeying to Panama City to his own home. Apparently, as a result of such reports, after the Respondent was at his own home, to his surprise, law enforcement vehicles and numerous law enforcement personnel, especially the Bay County Sheriff Department Swat Team, arrived in his yard, and, by megaphone, demanded his surrender. A television news crew was present at the scene and filmed the incident, which may have received billing as an "armed confrontation" between the swat team and the Respondent. In fact, this is untrue. When the Respondent observed the law enforcement officers arriving on his premises in a number of vehicles, he telephoned his attorney to inform him of the situation and then went to the door in response to the directive that he come outside. When he went to the door to ascertain why the law enforcement officers were at his residence, he was armed with a fork and a hamburger. He was charged with no crime in connection with this incident, although, apparently, he was involuntarily committed under the Baker Act once again for a brief period of time. The incident was disseminated to the public on the electronic media. However, no armed confrontation was proven to have occurred, nor was there any proof that the Respondent ever threatened to kill his parents. Although Mr. Simonson testified that there would be a great public outcry if he reinstated the Respondent because of this incident and the other incidents, there was no showing by the Petitioner that the incidents occurring at Rosenwald Middle School leading to the Respondent's suspension nor the incidents involving the alleged high-speed chase were ever communicated to the public generally or to parents of students of the Bay County school system or the students themselves. It was not shown by the Petitioner that the Superintendent or other officials of the Petitioner received any complaints from parents or members of the general public concerning the Respondent, his behavior, or his teaching performance. The incidents involving the alleged high-speed chase and the swat team confrontation, delineated in the above Findings of Fact, did not occur while the Respondent was on school premises nor while he was engaged in his duties as a teacher or coach. With regard to either incident, he was not shown to have committed any crime or conduct which can constitute misconduct in office. Both incidents occurred in the Respondent's private life, away from his employment and away from the School Board premises. The only conduct shown to have been disseminated in the public media involved the Respondent being taken into custody at his home by the Sheriff's swat team because the television news crew was there filming the incident. He was charged with no crime on that occasion and was shown to have committed no form of reprehensible conduct. He was merely involuntarily committed shortly thereafter, pursuant to the Baker Act. None of that can constitute misconduct in office, much less misconduct in office which in any way abrogates his effectiveness as a teacher in the school system involved. The Respondent has been taking Lithium and Prozac for his manic- depressive condition since 1989. He is presently under the treatment of Dr. David Smith, a licensed psychologist; and Dr. Ben Pimentel, a licensed psychiatrist, at a facility known as the "Life Management Center", as an outpatient. Both of these professionals opined that if the Respondent continues to take his medication, the symptoms of mania and depression will remain in remission, as they are at the present time. Indeed, in the past, since he first began taking medication for his condition in 1989 after being diagnosed as manic-depressive, at those times when the Respondent was taking his medication, his behavior and his teaching performance was up to the good and satisfactory standard which he had consistently exhibited from 1977 through the 1987-88 school year. It is only on those occasions when he has ceased taking his medication, in the apparent belief that his problem was not a chronic one, that he has exhibited the emotional instability, such as that displayed at Rosenwald Middle School in August and September of 1990, which is the subject of this proceeding. Indeed, both Drs. Smith and Pimentel, the only experts testifying in this proceeding, who testified for the Respondent, established that if the Respondent continues to take his medication, his symptoms of mania and depression will remain in remission and he will be competent to teach in terms of both his emotional stability and his ability to perform his duties as a teacher. Although Dr. Smith acknowledged that the rudeness exhibited by the Respondent on the occasions at issue in this case and his behavior involving striking a student and offering to wrestle a student might be behavior unrelated to the bi-polar disorder, the totality of the evidence supports the finding that, in the Respondent's case, given the many years of his teaching experience when he was a calm, caring, competently-performing instructional employee with behavior not characterized by such outbursts and aggressiveness, such conduct is, indeed, directly related to the present, active nature of his disorder on those occasions. On those occasions, he was not taking his medication. Dr. Pimentel believes that the Respondent needs to continue his medication. If he does continue his medication, he will be competent to continue teaching or to once again teach because his symptoms will remain in remission. Dr. Pimentel believes that the Respondent may need the motivation of a court order or employment directive or condition to insure that he continues his medication because if he obtains a medical opinion that he is no longer sick, he may not take the medication and stop the treatment. Additionally, Dr. Pimentel finds that the Respondent will require monthly counselling sessions and monitoring of his medication level to make sure it remains at a therapeutic level. Under those conditions, however, he would be capable of resuming his teaching duties. The Respondent, in his testimony, expressed the wish to obtain another medical opinion to make sure, in his view, that he is still manic- depressive, although he accepts the diagnosis that he is manic-depressive and is willing to continue his medication and to submit to monthly monitoring of his medication and monthly treatment by his presently-treating professionals.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent, Steven T. George, be suspended for a period of two years, but that the suspension be abated and the Respondent immediately reinstated to his duties as an instructional employee of the Bay County school district, with all of the rights of a tenured teacher, under the following circumstances which should remain in effect for a probationary period of two (2) years: His psychiatrist shall file monthly with the School Board a detailed report of his attendance at counselling sessions and the result of his monthly blood tests to ascertain if his medication remains at therapeutic levels. He is required to maintain the therapeutic levels of Lithium and Prozac or such medication as his physician and psychiatrist deem medically appropriate. If he fails to attend counselling sessions or to maintain therapeutic blood levels of his appropriate medication for any two (2) consecutive months, then this should be determined to be, at law, willful neglect of duty, subjecting him to dismissal as a teacher with the Bay County school district subject to the Respondent's right to contest such an employment action, pursuant to Section 120.57, Florida Statutes, in this forum. There should be no award of back pay in light of the above Findings of Fact and Conclusions of Law. There should be no award of attorney's fees in light of the above Findings of Facts and Conclusions of Law , and the opinion in Werthman v. School Board of Seminole County, Florida, 17 FLWD 1245 (Fla. 5th DCA, opinion filed May 15, 1992; Case Number 91-1831). The cases cited by the Respondent seem to accord the Respondent a hearing opportunity on the issue, with award of fees being discretionary. The Werthman decision appears contra in termination proceedings, however. DONE AND ENTERED this 31st day of May, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1-23. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record evidence. Accepted. Accepted, except that it was not proven that he had "gone through Ms. Love's mailbox". Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 28-29. Accepted. Rejected, as not supported by preponderant, competent evidence. Rejected, as not supported by preponderant, competent evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 33-35. Accepted. 36. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 37-39. Accepted. 40. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 41-47. Accepted. 48. Rejected, as not, in its entirety, being in accordance with the preponderant, competent evidence of record. 49-56. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 57-61. Accepted. 62. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-13. Accepted. 14. Rejected, as not supported by preponderant evidence. 15-22. Accepted. 23. Rejected, as not entirely in accordance with the preponderant evidence. 24-30. Accepted. 31-36. Accepted. 37. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant evidence. 38-41. Accepted. 42-48. Accepted. 49-51. Accepted. 52. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 53-54. Accepted. Rejected, as not in accordance with the evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not in accordance with the preponderant evidence of record. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not being entirely in accordance with the preponderant evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 61-63. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 64-72. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected, as not in accordance with the preponderant evidence of record. (Second No. 74). Accepted. 75-78. Accepted. 79. Rejected in the sense that it was proven by the Petitioner that at the time he was suspended, the Respondent was incompetent to teach due to incapacity related to his emotional instability. 80-85. Accepted. COPIES FURNISHED: Jack W. Simonson, Superintendent P.O. Drawer 820 Panama City, FL 32402 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Franklin R. Harrison, Esq. HARRISON, SALE, ET AL. 304 Magnolia Avenue P.O. Drawer 1579 Panama City, FL 32401 David Brooks Kundin, Esq. DOBSON & KUNDIN, P.A. 210 South Monroe Street P.O. Box 430 Tallahassee, FL 32302
Findings Of Fact During the 1977-78 school year, the Respondent, Erma Frederick, was employed as a classroom teacher in the Dade County Public School System, assigned to Buena Vista Elementary School. On October 10, 1977, a conference was scheduled between the Respondent, United Teachers of Dade, Representative, Ms. Mattie Squire and Ms. Linda E. Stuart, Principal of Buena Vista Elementary School. During the conference, Respondent was advised that based on two years of unsatisfactory evaluations (1973-74 and 1974-75) deficiencies in her teaching performance existed which, if not corrected by December 1, 1977, would affect her status as an employee in the Dade County Public School System and which, if not corrected by December 1, a complaint of incompetency would be filed seeking Respondent's dismissal. The substance of this conference was reduced to writing by letter dated October 10, 1977, and cited the following deficiencies: Failure to maintain pupil control by establishing and maintaining discipline. Failure to file instructional plans. Failure to implement lesson plans and to present materials correctly. Failure to correctly grade student papers and maintain accurate grade books. Failure to properly maintain cumulative records and to maintain attendance and other data entries on report cards. Failure to accurately take attendance. Failure to follow class schedules. Failure to maintain supervision of pupils at all times. Based on the Respondent's failure to otherwise remedy the above cited deficiencies to Petitioner's satisfaction, Petitioner suspended Respondent from her position as an instructional teacher on March 9, 1978. Respondent, although properly noticed, failed to appear at the hearing to refute the cited deficiencies relied on by Petitioner in suspending her as an instructional employee at Buena Vista Elementary School. Based thereon, and in the absence of any evidence having been offered by Respondent to refute or otherwise negate the above-cited deficiencies, they must be, and are, considered meritorious.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Respondent's appeal of her suspension by Petitioner be DENIED. DONE and ENTERED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Based upon my observation of the witnesses, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Richard A. Cohan, was employed by the Dade County School Board as a classroom teacher continuously from the time of his initial hiring in August 1970 until November 19, 1986, when he was suspended by Petitioner. During Respondent's employment with the Dade County School Board, he has taught at Shenendoah Junior High School, Booker T. Washington Junior High School, Kinloch Park Junior High School, Kensington Park Elementary School and Miami Edison Senior High School. Respondent was employed as a continuing contract teacher at Miami Edison Senior High School at all times relevant to the alleged misconduct herein. 1984-85 School Year Respondent's performance as a classroom teacher was satisfactory until the 1984-85 school year when he was absent 41 days from school. Frederick Sturgeon, Principal of Miami Edison Senior High School, made a notation concerning the absences on the Respondent's 1984/85 annual evaluation. 1985-86 School Year The Respondent's absenteeism continued into the 1985-86 school year. On November 5, 1985, Sturgeon held a conference for the record with Respondent because he had been absent 27.5 days since the beginning of the school year. Sturgeon was also concerned because Respondent failed to follow established school procedures when reporting his absences. During the 1985-86 school year, teachers who anticipated an absence were required to call a specific telephone number at the school and leave a taped message. The school secretary could check the messages during the night and arrange for any needed substitutes. The Respondent, however, usually called the school on the morning of the day he was absent. Thus, the school would have very little time in which to secure a substitute teacher who was specifically suited to teach the subject matter of the Respondent's classes. At the November 5, 1985 conference, Respondent was given specific instructions by Sturgeon to: Report any future absences to Assistant Principal Weiner personally and to discontinue calling the tape recording machine to report absences; Ensure that weekly lesson plans were available so that a substitute teacher would be able to continue with the lesson for that day; and Have on file with the school three days of "emergency lesson plans" dealing with general academic skills. On February 28, 1986, Sturgeon held another conference with the Respondent. The Respondent had been absent 5 times since the November 5, 1985 conference. On three of the days, Respondent did not call to report his intended absence. Sturgeon reiterated the same directives given Respondent during the November 5, 1985 conference. As of April 24, 1986, Respondent had been absent 58.5 days since the beginning of the school year. Because Respondent's absence pattern made it difficult to schedule a face to face conference, Sturgeon wrote a letter to Respondent expressing his concern over the high number of absences and the fact that from March 18, 1986 through April 24, 1986, there were 26 days during which the Respondent had not furnished lesson plans for his classes. Sturgeon again reiterated the directives of the November 5, 1985 conference. On May 12, 1986, a conference for the record was held with Respondent at the school board's Office of Professional Standards. Present at the conference were Assistant Principal Weiner, the Respondent, Dr. Gil (a coordinator in the office), and a union representative. The conference was held to discuss Respondent's performance assessment and future employment with the school board. The Respondent indicated his absences during the year were due to his grandmother's illness, the fact that he was not functioning well and the fact that he was taking medication for an upper respiratory illness. At the May 12, 1986 conference, the Respondent was directed to call Ms. Weinter directly to report any absences and to return his grade book to the school by May 13, 1986. Dr. Gil also determined that Respondent should be evaluated by a physician and an appointment was scheduled for the Respondent with Dr. Roger Rousseau, a psychiatrist. The Respondent first saw Dr. Rousseau on May 15, 1986. On May 20, 1986, the Respondent had still not furnished the grade book to the school. Ms. Weiner directed Respondent, by way of a memorandum, to produce the grade book as previously requested. On May 30, 1986, Sturgeon completed an annual evaluation in reference to Respondent's teaching performance. Respondent was rated "unacceptable" in the category of professional responsibility. On June 4, 1986, Sturgeon discussed with Respondent his most recent absences (May 29th to June 3rd) and the fact that he had not called Ms. Weiner to report them, had not provided lesson plans for two of the days and had still not provided the grade book to the school. The Respondent stated that he would comply with the directives in the future and provide his grade book to the school. Respondent was absent from June 6, 1986 until June 19, 1986. By letter dated June 11, 1986, Sturgeon requested that Respondent provide final examinations for his students and again directed that Respondent furnish the school with his grade book. On June 19, 1986, Sturgeon held a conference with the Respondent. The Respondent had not provided final examinations for his classes (one of the other teachers had to prepare the final exams), had not produced the grade book and had not provided lesson plans for use during his absences. The Respondent indicated to Sturgeon that on occasions, he attempted to contact Ms. Weiner but was unable to get through to her and at other times he forgot to contact her. The Respondent also informed Sturgeon that he was having a personal problem that he could not share with the school, and that the personal problem was having such an effect on him that he didn't feel that he could comply with the directives. On July 17, 1987, a conference was held at the school board's Office of Professional Standards, between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to review Respondent's performance over the previous school year. In Sturgeon's opinion, the Respondent's students had not been graded properly during nearly the entire year, final exams had to be administered which did not adequately assess the students' progress and the students had not reached the course objectives. At this time, the Respondent was a little more specific about the problem that he had mentioned to Sturgeon earlier and stated that he was having a mental problem and that he had experienced a series of traumatic experiences which had affected his ability to attend school. At the conclusion of the July 17, 1987 conference Sturgeon decided to recommend a short term of suspension, a medical examination and a period of controlled monitoring during the next school year. The recommendation was approved by the school board and Respondent was suspended for ten work days beginning the 1986-87 school year and was placed on probation for a 45 day monitoring period. The Respondent did not contest the suspension. 1986-87 School Year The Respondent returned to work from his suspension on September 16, 1987. Classes for the new school year had already commenced. Prior to returning to work, Respondent had gone to school and was given a teacher handbook in biology by Ms. Weiner. Respondent prepared lesson plans and tests based on the teacher handbook he had been given. When Respondent returned to school, he was given a new teacher handbook for biology. Respondent had to re-do all of his lesson plans and tests. In addition, he discovered that none of his classes had been issued textbooks. Respondent also received a folder filled with five classes worth of work for the proceeding 15 days which was assigned by the substitute teacher. On September 29, 1986, Ms. Weiner conducted an observation of Respondent's class. Respondent was rated "acceptable" in five categories but "unacceptable" in the area of assessment techniques. This rating was based on the fact that there was no work done by the students contained in the student folders, his grade book contained only one entry grade per student for only one week and students were allowed to grade other students' essay-type examinations. Weiner gave Respondent a prescription for improving his deficiencies which included the directive that he conduct at least two formal assessments of student progress per week and maintain student folders to keep evaluative items. During October 1986, the Respondent was absent 15 days. Most of the absences were due to a severe intestinal flu which Respondent contracted. The Respondent failed to report his absences directly to Ms. Weiner as previously directed. On some occasions, the Respondent attempted to call Ms. Weiner, but could not get through to her on the telephone. When Respondent was unable to contact Ms. Weiner he would sometimes call the answer phone and leave a recorded message. On October 27, 1986, a conference for the record was held at the Office of Professional Standards between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to discuss Ms. Weiner's observation of Respondent, his continued failure to contact Ms. Weiner directly regarding absences and his failure to file emergency plans. On November 3, 1986, Sturgeon conducted an observation of the Respondent's classroom. Sturgeon rated the Respondent "unacceptable" in the area of assessment techniques. This unacceptable rating was based on the fact that Respondent did not have any student folders and had not assigned any homework. School policy required that teachers assigns homework at least twice a week. Respondent was also rated unacceptable in the area of professional responsibility. On November 14, 1986, Ms. Weiner conducted an observation of Respondent's class and rated him "unacceptable" in the area of assessment techniques. The Respondent had no student folders, did not conduct at least two formative assessments of the students per week and there were no summative assessments of the student's progress. The Respondent admitted that he did not have formal folders and that his evaluation techniques were deficient. The Respondent stated that he was unable to employ the student assessment procedures recommended given by Ms. Weiner during the first few months of the 1986-87 school year because he was in the process of "catching up" after his return from suspension and was unable to do all of those things in such a short period of time. In addition, Respondent was hindered in his attempt to catch up because he was unable to have a lot of needed items copied because at times the machines were broken and at other times teachers with current items requiring reproduction were given priority. On November 19, 1986, Petitioner suspended Respondent from his position at Miami Edison Senior High School. Beginning in the 1984-85 school year and continuing through to the 1986-87 school year, Respondent suffered from a dysthymiac disorder referred to as neurotic depression. Respondent's condition was first diagnosed by Dr. Roger Rousseau, a psychiatrist, on May 15, 1986. At the insistence of Dr. Gil, Respondent went to Dr. Rousseau's office for an examination. Dr. Rousseau was chosen from a list provided to Respondent by Dr. Gil. Dr. Gil personally made the appointment for Respondent to see Dr. Rousseau. Respondent at first did not realize or believe that he was suffering from a mental illness and initially resisted the treatment provided by Dr. Rousseau. However, Dr. Rousseau was able to establish a psychotherapeutic relationship with the Respondent after a short period of time. After the doctor-patient relationship was established, Respondent decided to continue seeing Dr. Rousseau and kept weekly appointments from June, 1986 until November, 1986. Respondent was treated with individual psychotherapy and antidepressant medication. In November of 1986, Respondent stopped seeing D. Rousseau because Respondent moved to Atlanta, Georgia, shortly after being suspended. Neurotic depression is a serious mental illness of a cyclical nature which may be physically disabling while the afflicted person is in a pathological state of depression. The symptoms of a neurotic depression include extreme sadness, apathy, lack of motivation, inability to concentrate, psychomotor retardation, insomnia and loss of appetite. Respondent's periods of pathological depression were characterized by feelings of helplessness, hopelessness and an apathy toward outside activities, including his employment. During Respondent's depressive states he would isolate himself at home, withdraw from all social contact, neglect his nutrition and hygiene and suffer insomnia. At times, Respondent would be unaware of the passage of time and would have crying spells. In his depressive condition, sometimes Respondent knew what he was required to do, such as calling in to report an absence, but because of his despair and dejected mood, was unable to motivate himself to do anything. Respondent's apathy and inability to attend to his necessary duties was a direct result of his neurotic depression. Due to the depressive symptomatology, a neurotically depressed person might fail to perform required duties for a number of reasons. As a result of an inability to concentrate, the depressed person may be unable to receive and assimilate instructions. The depressed person having a desire to complete a required duty may lack the physical capacity to perform because mentally he or she feels unable to do so. Further, because of an unconscious, passive- aggressive need for punishment, a depressed person may neglect to perform a required duty. The Respondent was examined by Dr. Albert Jaslow, a psychiatrist, on September 15, 1986 at the request of Dr. Gil of the Office of Professional Standards. Dr. Jaslow confirmed that Respondent was suffering from a mental illness and found that Respondent had made progress with his treatments from Dr. Rousseau. Dr. Jaslow noted that Respondent had reached a state of "relative adjustment" and had begun to realize that it would be necessary for him to be involved in a psychotherapeutic relationship in order to control the negative behavioral aspects of his periods of depression. Dr. Rousseau believes that Respondent responded well to treatment after an initial period of resistance and lack of insight (which is a part of the depressive symptomatology). Dr. Rousseau feels that the Respondent was getting better during the course of therapy but will need to continue taking his medication and receiving psychotherapy in order to fully complete the recovery process and control any recurring symptoms of depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: Respondent be dismissed from employment; however, said dismissal shall be held in abeyance for 2 years from the date of the Final Order contingent on the following: Respondent's present suspension shall remain in effect until the commencement of the 1987-88 school year when Respondent shall return to work; Respondent shall continued treatment with Dr. Rosseau or another qualified psychiatrist of his choice; Respondent shall maintain acceptable performance evaluation reports during the school year, overall acceptable annual evaluations and be recommended for employment by his school principal at the end of the 1987-88 and 1988-89 school years. The Office of Professional Standards, Dade County Board, shall monitor the Respondent's progress and fulfillment of the terms of the Final Order. If the Office of Professional Standards provides information by letter or motion to the school board that the Respondent has failed to meet any of the terms of this Order, the school board shall, if satisfied that the information is correct, immediately effectuate Respondent's dismissal by majority vote. If Respondent meets the requirements of the Final Order, the dismissal shall be remitted without further action. DONE and ORDERED this 28th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4805 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Addressed in Procedural Background section. Addressed in Procedural Background section. (No finding of fact 3) Addressed in Procedural Background section. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Findings of Fact 9, 10 and 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Rejected as unnecessary and/or subordinate. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 24. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 6. Adopted in substance in Findings of Fact 8-21. Adopted in substance in Finding of Fact 9. Adopted in substance in Findings of Fact 9 and 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 29. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Adopted in substance in Finding of Fact 31. Addressed in Conclusions of Law section. COPIES FURNISHED: Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 William duFresne, Esquire 2950 Southwest 27th Avenue Suite 310 Coconut Grove, Florida 331133 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33136 Dr. Patrick Gray Division of Professional Standards Dade County Public Schools 1550 North Miami Avenue - Suite 100 Miami, Florida 33136 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1550 North Miami Avenue Miami, Florida 33136
Findings Of Fact Petitioner, Fred D. Greene, began service with the Hamilton County School Board as a teacher in August, 1965. He was employed on annual contract for three school years until he was granted a continuing contract by the school board on July 23, 1968, as a teacher pursuant to Section 231.36, Florida Statutes. After the execution of the continuing contract, Petitioner was assigned as coordinator of vocational education during the 1969-1970 school term but in addition to those duties, continued to teach five classes. As Petitioner was assigned additional duties by the Superintendent, his teaching duties were reduced. Starting in 1970 and continuing through 1973, though the continuing contract as a teacher had not been rescinded, Petitioner and the school board entered into annual contracts of employment in which Petitioner was assigned as Director of Vocational Education. On June 5, 1973, the parties entered into a second continuing contract which described Petitioner's duties as "Director of Vocational, Technical and Adult Education." At no time did Petitioner ever hold a contract as "principal" nor was he ever paid as such. His current Florida Teacher's Certificate shows him certified in, among other things, secondary administration and supervision. Both this contract and the 1968 continuing contract contained a provision that the school board was authorized, upon recommendation of the superintendent of schools, to transfer and assign the Petitioner to a "similar position in any other school" in the district, provided that "the duties shall be similar to the duties originally assigned and the salary shall be as heretofore set forth." From the time he was appointed director of VTAE until January, 1981, Petitioner served in that capacity. As director of VTAE, he considered his position as similar to that of a principal in that he reported directly to the Superintendent of Schools, he supervised the teachers who taught within his program (although he did not rate them) he was paid on the non- instructional salary schedule as is a principal he was responsible for the procurement of and administration of students including their promotion and graduation. Nonetheless, he was not classified as a principal, he served schools throughout the county, the teachers in the program were recruited from regular day teachers and additional personnel who taught only in the night program, and these teachers were rated by their day principal when appropriate. Consequently, his position as Director, VTAE, was not similar to that of a principal. At the time he left the job as Director, VTAE, to assume the office of Superintendent of Schools, he was paid a salary of $21,000.00 per year for a 12 month term and was on step 6 of the non-instructional salary schedule. He has never released the school board from the terms of the continuing contract. In January, 1981, Petitioner took office as Superintendent of Schools. At that time the function of Director, VTAE, was assigned to Ms. Scaff who subsequently also occupied several other positions within the school board system including instructional coordinator, secondary curriculum coordinator, community education director, law education director, and management information systems director. Ms. Scaff did not assume all those functions at one time. The job was built up over a period of years and while the duties changed, the title of Director, VTAE, did not. Ms. Scaff was paid as an instructional director on the non-instructional salary schedule. As Director, VTAE, Ms. Scaff, and Mr. Greene before her, occupied one of the director positions reflected in the directory of the School Board. The School Board uses the same contract form for directors and principals and the director is evaluated by the Superintendent of Schools as is a principal, but there are few other similarities between the function of principal and Director. Petitioner served as Superintendent of Schools from 1981 until November, 1984, when he was replaced as superintendent by Mr. Hinton. Several months before his term expired, in June, 1984, Petitioner recommended to the School Board that it appoint Ms. Scaff, who was at that time serving as, inter alia, Director, VTAE, to a two year contract in that position. This contract was approved by the School Board. Shortly after his defeat in the election, Petitioner allegedly told Mr. Hinton that he did not wish to displace anyone employed by the school system in order to enforce his return rights under the continuing contract he held. It was his position that he would accept a teaching position but at a salary level equivalent to that of an administrator until such time as an administrator's position within the system became open. At a special meeting of the School Board called by Petitioner on the last day of his term as superintendent, Mr. Greene nominated himself for the position as principal at NHE. This nomination, however, was tabled by the School Board upon advice of counsel so that an advisory opinion on it could be requested from the Florida Commission on Ethics. At this point it should be noted that though the position as Principal at NHE became vacant prior to Petitioner leaving his position as superintendent, he did not apply during the period that the·advertisement was open. The only person to do so was Harry Pennington who was subsequently placed in that position. When Mr. Hinton assumed the position of Superintendent of Schools, replacing Mr. Greene, he immediately assigned Petitioner to the position as teacher of business education. Mr. Greene accepted the assignment but requested that he be paid a salary equivalent to the 20th step on the salary schedule for the position of instructional director at a figure of $32,550.00 per year. The figure demanded by Petitioner was not paid, however. After conferring with the State Department of Education regarding the proposed salary for Petitioner, the School Board determined that since he held a continuing contract as a teacher, he would be employed at a salary based on the teacher position. He was given credit for four years of teaching service while serving as Superintendent of Schools which placed him at the 20 year service point. In addition, he was given credit for a master's degree and for teaching in his field of certification. His total salary, therefore, was set at $23,460.00 over a ten month term. Petitioner was not satisfied, especially since Mr. Pennington, who was serving as principal of NHE was receiving $28,100.00 per year based on a 12 month employment contract. On May 27, 1985 the school board rejected Mr. Greene's nomination of himself as principal at NHE. The board's rejection of Mr. Greene was based on the recommendation of Mr. Hinton who felt that Petitioner was not qualified for the position in that he did not hold certification in administration and supervision at the elementary level his contract was not for the position of principal he had no experience as principal or assistant principal he did not apply for the position when it was advertised and because counsel advised that filling the position based on self nomination might violate Florida law. Mr. Pennington on the other hand, was fully certified in administration and supervision for all grade levels involved at NHE. Other positions for which Respondent felt himself qualified came open during the 1984-1985 school year but he was not selected to fill any of them. Included in these were that of principal of Hamilton County High School and administrative assistant positions at both North Hamilton Elementary and South Hamilton Elementary. When Mr. Hinton took over as Superintendent of Schools, as a part of his management program and in an effort to correct what appeared to be a problem regarding the late payment of School Board obligations which existed when he took over, he recommended certain personnel changes including the creation of an office manager position. Mattie Fouraker, formerly the business education instructor at Hamilton High School, was appointed office manager to the School Board at a salary approximately equivalent to that she received as a teacher. It is to her vacant job as teacher of business education that Mr. Greene was assigned. Petitioner contends Ms. Fouraker was appointed to the position before it was ever officially created and approved by the School Board. Be that as it may, however, it becomes clear that the Superintendent of Schools intended that a problem be solved and to do so, created a position designed to correct it. He appointed Ms. Fouraker to the job on a temporary basis and as soon as the School Board met at the next scheduled meeting in December, 1984, it approved the position and confirmed Ms. Fouraker's assignment to it. This formal board action, however, served to increase her pay from that of a teacher at $23,460.00 per year to that of an administrative position at $29,700.00 per year and her position was changed from that of a 10 month to a 12 month employment, along with the benefits accruing thereto. Petitioner's salary as business education instructor was developed through a tailored formula developed with an intent to,-in the opinion of Mr. Hinton, put Mr. Greene in approximately the same position for the four years he was Superintendent of Schools. As was stated previously, Mr. Greene was given credit for his 16 years in the classroom plus his years of superintendent for a total of 20 years experience credit. Added to that was credit for a Master's degree and credit for teaching in his field of certification. When the $23,460.00 salary that was arrived at for this was compared to what it was anticipated he would have earned had he stayed as Director of VTAE, it was seen that had he remained in his position on the same salary schedule, he would have presumably earned $2,362.50 per month ($23,625.00 per 10 month school year) as an instructional director, Step 6. This is approximately $155.00 more over the school year. Had Petitioner been paid at the salary of an instructional support position, Step 6, the monthly salary would be slightly lower. It should be noted, however, that due to schedule changes during the period, this might not be a valid comparison. Positions within the school system are assigned by the Superintendent of schools on the nature of the position. Non- instructional personnel are assigned categories on the salary schedule based on an assessment of their qualifications and value to the system. Teachers, on the other hand, who are generally serving under contracts, are placed on the salary schedule consistent with the number of years experience they have plus certain other additions. It was Mr. Hinton's position that Mr. Greene should be paid as a teacher since he was serving as a teacher and once that decision was made, Mr. Greene was paid the highest amount that a person with his certificate and his experience and qualification could earn in that position. When the Florida Commission on Ethics issued its opinion on the question certified to it regarding Petitioner's recommending himself for the position of Principal of NHE, the opinion indicated the Commission could not conceive of how the Petitioner's actions in recommending himself for a position could not have constituted a misuse of public position. In other words, while not saying that it was, the Commission concluded that it probably was a violation. Thereafter, the School Board requested an Attorney General's opinion on whether a school superintendent may nominate himself for appointment of a principal. The opinion was not received as of the date of the hearing. Turning again to the issue of the function of Director of VTAE, the School Board contends that the function of Director has steadily expanded in scope. For example, Mr. Hinton urges that the work that Mr. Greene was doing as Director, VTAE prior to being elected superintendent now constitutes only 10 to 20% of the currently described duties of the position. The additional functions that Ms. Scaff performs, as described above, he contends, constitute more by far than that which Petitioner did when he held the job. In support of that position, Mr. Hinton refers to the organization and management study conducted in 1983 at the request of Petitioner when he was Superintendent of Schools. Among the pertinent recommendations of that study was the restructuring of the organization within the school district level. The position of Director, VTAE was not one of the three Director and five coordinator positions recommended by the study. Ms. Scaff indicates that when Petitioner was defeated in his bid for re-election as superintendent of schools, she indicated her willingness to step down from the position of Director, VTAE and return to classroom teaching. She does not consider the return to a position of teaching as a demotion nor does Ms. Fouraker. It should be noted, however, that both individuals received substantial increases in salary by virtue of their position changes under the Hinton administration. For example, Ms. Fouraker's promotion to the position of office manager carried a pay increase from $23,460.00 to $29,700.00 per year. Ms. Scaff now earns the same. Mr. Greene was at Step 6 on the non-instructional scale when he left the job of Director, VTAE. These scales were modified in the intervening years, and Ms. Fouraker traced Mr. Greene's position as Director, VTAE, to the new scale as if he had stayed in place. She placed him at Step 6 on the new scale at a salary of $28,350.00. Petitioner contends that he should be treated the same as Mr. Coe, Director of Personnel, who realized a large salary and step increase when the pay scales were changed. If this were done, and he was given an instructional director's position at step 20 on the non- instructional salary schedule, his salary would be $32,500.00. Subtracting that $28,350.00 from the $32,550.00 he says he should be earning, Mr. Greene indicates that he lost approximately $4,958.87 for the period starting November 20, 1984, when he began teaching, to the end of the school year. He further contends that his salary loss is continuing at the rate of $757.50 per month and in addition, he is also being deprived of other benefits of employment such as paid annual leave, sick leave, enhanced retirement benefits, and other like perquisites attached to a 12 month contract. Mr. Greene further contends that since he was involved in litigation with the school board concerning Mr. Coe's contract prior to his leaving the position of Superintendent of Schools, the School Board should have known of his entitlements under the continuing contract since it was shown that it had been established for assignments and transfers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Fred D. Greene, be assigned a non-principal supervisor/director position within the Hamilton County Schools as available that he be paid accordingly when performing in such a position but that he be denied adjustment for back pay and attorney's fees and costs. RECOMMENDED this 29th day of October, 1985, in Tallahassee, Florida. ARNOLD H POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1985. COPIES FURNISHED: John D. Carlson, Esquire Gatlin, Woods, Carlson & Girtman 1030 East Lafayette, Suite 112 Tallahassee, FL 32301 Paul Hendrick, Esquire 111 South Central Avenue Suite 1 Jasper, FL 32052 Owen Hinton, Jr. Superintendent Hamilton County School Board P. O. Box 1059 Jasper, FL 32052 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, FL 32301 APPENDIX Ruling by the Hearing Officer as to the Petitioner's Proposed Findings Of Fact: Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted* Accepted* Accepted* Accepted Accepted except as to the veracity of the reported comment of the School Board member Accepted Accepted Accepted Accepted except as to comments of Ms. Scaff as to her being a principal and signing forms as such Accepted except for Petitioner's comment that he would receive temporary certificate for Elementary Ed principal and would obtain certification in grades K-6 without much problem Accepted Accepted Rejected as irrelevant Irrelevant as a finding of fact should be conclusion of law Accepted Accepted except as to last sentence which is irrelevant unnumbered between and 23 Rejected Rejected Rulings by the Hearing Officer as to Respondent's Proposed Findings of Fact (Respondent failed to number paragraphs.) The unnumbered paragraphs are therefore treated in sequence and numbered herein for purposes of identification only. Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted as to substance Accepted Accepted Accepted except that acceptance of the position was not meant to be acquiesed in permanent assignment Accepted Accepted Accepted Accepted Accepted Accepted as it relates to teacher salaries only Accepted Accepted Accepted Accepted Accepted as to the request made. As of the hearing, the opinion had not been received. It was not offered into evidence and though attached to Respondent's Proposed Recommended Order, was not considered Accepted Accepted Accepted except for the conclusion drawn in the last sentence which was not supported by evidence admitted. Accepted Accepted Accepted Rejected. Position was held by Ms. Scaff who performed the same duties performed by Petitioner when he was the encumbent, in addition to additional duties which he did not *Petitioner's terms describing the personnel changes are not necessarily dispositive of the issue.
