Findings Of Fact The Respondent, Deborah Green, hold Florida teaching certificate 586445, covering the areas of Math, Elementary Education and Educational Leadership. The certificate is valid through June 30, 1997. During the 1992/1993 school year, the Respondent was a teacher in the Pinellas County Schools GOALS program at Dixie Hollins High School. GOALS stands for Graduation Options - Alternative to Leaving School. It is a drop-out prevention program. Although the evidence did not describe the GOALS program in detail, the evidence suggests that GOALS teachers may be in the position of having to change some of the rules of regular education in order to keep students from dropping out and yet may still be subject to criticism for not conforming to the rules of regular education. Put another way, there appears to be the potential for some of the priorities of the GOALS program to be inconsistent with some of the priorities of regular education, and it was not clear from the evidence how GOALS teachers are supposed to balance the competing interests. One of the Respondent's GOALS students in history class during the 1991/1992 school year was Andrew Patrick. By definition, as a GOALS student, he was at risk to drop out when he entered the program. He also was a poor student, especially in math. Emotionally, Patrick seemed to suffer from an abnormally strong need to feel popular while at the same time failing to realize that the results of his efforts to be popular generally were the opposite of what he intended. After letting down his guard and allowing himself to be friendly and civil with the Respondent, he soon came to like her personally. At the same time, he seemed to sense (probably correctly) that a personal relationship with the Respondent, who was a very popular teacher, could make him popular by association. Over time, a close teacher-student relationship developed between the Respondent and Patrick. The Respondent was able to use this relationship to further her goal of keeping Patrick interested in school. In addition, the Respondent discovered that Patrick became more interested in school the more he was allowed to help the Respondent in the classroom. As a means of legitimate "positive stroking," the Respondent gave Patrick more and more responsibilities in her classroom and praised him for carrying them out successfully. Over time, Patrick developed an adolescent crush on the Respondent. He became unusually interested in her and in the details of her personal life. He learned, accidentally at first, that the Respondent was dating a man named Michael Miller, who was married and who was the principal of another Pinellas County high school. He questioned her repeatedly about her relationship with Miller and also pestered the Respondent's adopted daughter, who also was in the GOALS program, for information about the Respondent and her personal life. (Actually, the girl was the daughter of a close friend of the Respondent. The Respondent and her friend helped each other raise their children. Both families lived in the Respondent's home, and the Respondent referred to the girl as her daughter.) In addition, for a student, he bought her relatively expensive gifts; he also bought her gifts more frequently than the other students. The Respondent did little to discourage Patrick's obvious crush on her. Instead, she exploited it, in part in furtherance of her objectives as his GOALS teacher but also, during the 1992/1993 school year, in part for her benefit. During the 1992/1993 school year, Patrick's role in the Respondent's pre-algebra classroom expanded to what seemed to be practically the Respondent's personal assistant. The Respondent gave Patrick a desk at the front of the classroom near her teacher desk, facing the students, such as a teaching assistant might have. The Respondent had Patrick prepare weekly GOALS progress reports for her to fill out for each student. (He wrote her name in the appropriate blank, but it was not proven that the blank necessarily called for her signature or initials, as opposed to just her identity as teacher.) The Respondent also had Patrick maintain the hall passes for her use. When a student needed a hall pass, she referred the student to Patrick to get one. Patrick would fill out the hall pass and give it to the student. Usually, the hall pass required the Respondent's signature but, on occasion, Patrick forged the Respondent's signature. When the Respondent was made aware that Patrick had forged her signature, she admonished him not to, but she did not monitor very closely or control him very well. The Respondent also had Patrick complete daily attendance slips to be picked up by a runner from the administrative offices. The Respondent also had Patrick use an answer key to grade daily class assignments and some quizzes for his class and other classes she taught and had him enter the grades in a grade book. (There also was one other student who used an answer key to grade some daily class assignments and some quizzes and enter the grades in a grade book for the Respondent, but the other student was not nearly as heavily involved in these activities as Patrick.) It is not clear from the evidence whether Patrick and the other student entered the daily class assignment and quiz grades in the Respondent's official class grade book or in one of the other grade books that the Respondent maintained for other purposes. Patrick usually performed tasks for the Respondent during math class, but sometimes (as the Respondent was aware) he left other academic classes during the school day to the Respondent's classroom to perform tasks for her. Patrick rarely took quizzes himself. The Respondent had determined that Patrick did not test well, and she devised alternative means of measuring his progress in her classroom. Often, Patrick didn't even know when the Respondent was evaluating and grading what he was doing for her in the classroom. Patrick relished his role as the Respondent's assistant, applied himself to it and did a very good job in the role. He obviously tried very hard to please the Respondent, and she gave Patrick credit for his effort and performance. But it seems questionable how the Respondent fairly and accurately could have evaluated and graded Patrick's progress, especially in a class like pre-algebra, based on his performance in the tasks she was assigning him to do for her in the classroom. On the other hand, what she was doing kept Patrick in school, and there was no evidence that the general approach was incorrect in the context of a GOALS program pre-algebra class. During the 1992/1993 school year, the Respondent was under stress at least in part due to her relationship with Miller. It probably comforted her to an extent to allow Patrick to draw her into discussions about subjects such as her relationship with Miller. She stopped short of discussing the intimate details of the relationship, but in some respects Patrick could use his imagination to fill in the blanks. Later in the fall, the Respondent had to deal with the additional stress of having to decide whether to accept an offer of marriage from a well-to-do friend from Texas. She freely discussed her dilemma with Patrick. By January, 1993, the Respondent was having serious difficulty handling the stress and began to suffer physical symptoms. She accepted the advice of her chiropractor, who was treating the physical symptoms of her stress, to take a medical leave of absence. Her application for leave was approved through June 11, 1993, and she began her leave on January 27, 1993. When Patrick inquired about the Respondent's absence from school, and was told that she was gone and probably would not be back, he became hysterical. He went to the principal's office and angrily accused the principal of getting rid of the Respondent because of her relationship with Miller (which the principal knew nothing about) because he was confidant that his (Patrick's) relationship with the Respondent was much too close for her to have left voluntarily without consulting with him. He described the nature of their relationship. When the principal denied that he had anything to do with it, Patrick began to blame himself, saying that he had encouraged the Respondent to drop her relationship with Miller and marry the friend from Texas. The principal calmed Patrick down and had him sent home. That evening, Patrick's mother telephoned the principal to complain about the Respondent. She had talked to her son and obtained new information from him about his relationship with the Respondent and his role in her classroom. After receiving the mother's telephone call, the principal telephoned the Respondent to inform her that a student had made serious allegations about her and that the student's mother had called him very upset. He would not tell her what the allegations were but told her the name of the student. The Respondent declined to talk about it further over the telephone but readily agreed to meet with the principal, Patrick and his mother the next day at 1:00 p.m. The Respondent also agreed to write Patrick and his mother to explain that she was on medical leave of absence. It was not proven that the principal told the Respondent not to talk to Patrick before their meeting the next day. On the morning of the next day, the Respondent telephoned the school office to have Patrick paged to speak to her. The office assistant told her that she only could do so if it was an emergency. The Respondent told her that it was. The Respondent spoke with Patrick for about ten minutes. She asked Patrick what he had said to the principal. When he told her, she admonished him that his statements had put her at risk of losing her job and that he had better "get his story straight." He correctly interpreted her to mean that she wanted him to recant his statements in order to protect her and her job. At the meeting at 1:00 p.m., Patrick recanted his earlier statements and claimed that his mother had blown everything out of proportion. It was improper for the Respondent to use Patrick (and, to a lesser extent, the other student), as she did during the fall of the 1992/1993 school year, as a personal assistant to grade class papers for her and enter grades in grade books for her. Her practice gave Patrick improper access to too many students' grades on papers and quizzes. It also tended to create an unhealthy appearance of favoritism. Although it was not proven that a certain amount of special treatment for good behavior and effort would be inappropriate especially in the context of a GOALS class, the Respondent went overboard when it came to Patrick.) It was improper for the Respondent to engage in the close personal relationship that developed between her and Patrick during the fall of the 1992/1993 school year. It became harmful to the learning environment, it changed the relationship from a teacher-student relationship to a friend-friend relationship, and it tended to create an unhealthy appearance of favoritism. Encouraging Patrick to lie for the Respondent in order to protect her job (and Miller's reputation) exposed him to conditions harmful to his learning and mental and emotional health and safety. The Respondent exploited her relationship with Patrick for personal gain or advantage during the fall of the 1992/1993 school year in that she used him improperly as her personal assistant. Except for the incidents that were the subject matter of this case, the Petitioner has a fine record as a teacher. In fact, at the time she took her medical leave of absence, she was about to be interviewed as part of the School Board's Targeted Selection Process for recruiting and training qualified teachers for promotion to a managerial position. The Respondent's inappropriate conduct during the fall of the 1992/1993 school year resulted from the exercise of poor judgment in the degree to which she varied from the conduct expected of a teacher in regular education while teaching in the GOALS program. The Respondent's poor judgment may have resulted in part from the debilitating personal stress from which she was suffering and which, actually on the eve of her Targeted Selection interview, required her to take a medical leave of absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order suspending the Respondent for 45 days based on the charges that have been proven in this case. RECOMMENDED this 17th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1629 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, accepted and incorporated. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that either graded test papers or that test grades were entered or that grades were entered in the Respondent's official grade book. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as not proven. (She gave them A's in part for the work they did for her, rather than solely for scores earned on tests and quizzes administered to the other students.) Second sentence, accepted and incorporated. Accepted but subordinate and unnecessary. Rejected as not proven that a "sexual relationship" with the Texan was discussed. Otherwise, accepted and incorporated. Rejected as not proven. Accepted and incorporated. First sentence, rejected as not proven. Otherwise, accepted and incorporated. First sentence rejected as not proven that she did not agree to meet until after talking to the student. Otherwise, accepted and incorporated. Rejected in part as conclusion of law. Also, rejected as not proven that it is improper for a teacher to have a student grade another student's daily class assignments and homework assignments for immediate feedback. (This usually is done by exchanging papers in class.) Otherwise, accepted and incorporated. (The extensive use of Patrick as if he were the Respondent's personal assistant was improper.) Rejected as not proven as to Shannon. Accepted and incorporated as to Patrick. Accepted but subordinate and unnecessary. (It was not proven that the Respondent allowed Patrick to forge her signature to hall passes.) Rejected as not proven in the context of the GOALS program. Accepted and incorporated. Rejected as not proven as to Shannon. Accepted and incorporated as to Patrick. Respondent's Proposed Findings of Fact. (For purposes of these rulings, consecutive numbers have been assigned to the unnumbered paragraphs of proposed findings of fact in the Respondent's proposed recommended order.) 1. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 2.-3. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to facts found and to the greater weight of the evidence that the Respondent just told Patrick to "tell the truth." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Generally accepted but subordinate, some to facts contrary to those found. The documents in evidence reflect that the Respondent did give quizzes in her GOALS classes. And, while evaluators who observed her classrooms saw students grading class assignments, the evidence was not clear that they were aware of the extent of Patrick's role as the Respondent's personal assistant. Last sentence, rejected as contrary to the evidence. But the rest is accepted and incorporated to the extent not subordinate or unnecessary. 7.-8. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as to Patrick as contrary to facts found and to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, accepted and incorporated. The rest is rejected as contrary to facts found and to the greater weight of the evidence. Fourth sentence, rejected as contrary to facts found and to the greater weight of the evidence. The rest is rejected as contrary to facts found and to the greater weight of the evidence. Accepted but subordinate and unnecessary. COPIES FURNISHED: J. David Holder, Esquire Suite 100 1408 North Piedmont Way Tallahassee, Florida 32312 Bruce P. Taylor, Esquire 501 First Avenue North Suite 600 St. Petersburg, Florida 33701 Marguerite Longoria Robinson, Esquire Kelly & McKee, P.A. 1718 E. 7th Avenue, Suite 301 P. O. Box 75638 Tampa, Florida 33675-0638 Karen Barr Wilde Executive Director 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent should be suspended from employment for twenty days without pay for misconduct and unprofessional conduct in violation of School District Policies 1.013 and 1.014, Florida Administrative Code Rules 6B-1.001(3) and 6B-1.006(4)(b), (5)(a) and (5)(h), and School Board Bulletins #P-12542-CAO/COO-Count Day and Class Size Reduction Review, and #P-12519-CAO/COO-Florida Department of Education Student Enrollment Procedures.
Findings Of Fact Petitioner, Palm Beach County School Board (the Board or Petitioner), operates, controls, and supervises all public schools within the Palm Beach County School District (the District), as authorized by Subsection 1001.32(2), Florida Statutes (2008). The District School Superintendent, Dr. Arthur C. Johnson (Superintendent Johnson) is responsible for the administration, management, and supervision of instruction in the District, as provided in Subsection 1001.32(3), Florida Statutes (2008). Respondent, Dr. Gwendolyn Johnson (Dr. Johnson or Respondent) was the principal at Independence Middle School (Independence) during the 2007 to 2008 school year. In her thirty-five years with the District, Dr. Johnson was a principal for eight years, an assistant principal for eleven and a half years, a guidance counselor for approximately nine years, and, before that, an elementary and high school occupational specialist. At Independence, Respondent's assistant principals were Kathleen Carden, Martest Sheffield, and Scott Duhy. Although the projected enrollment was 1174, not the minimum number of 1201 required to justify having a third assistant principal, Dr. Johnson requested and, on May 15, 2007, received approval to keep the third assistant principal, Mr. Duhy, subject to reaching or exceeding the required enrollment by the time the count of students was taken on or about the eleventh day of school in the fall. The increase over the projection was possible because Independence was the 2007 receiving school for students whose parents transferred them from D- or F-rated schools under No Child Left Behind Act. For the 2007-2008 school year, Dr. Johnson assigned primary responsibility for maintaining a count of the student population to another one of the assistant principals, Dr. Carden. In addition to determining the number of assistant principals, the enrollment count is used by the District to determine other staffing, including the number of teachers, and guidance counselors assigned to each school. Attendance at Independence was reported by teachers each school day on bubbled attendance sheets. The sheets were scanned each day and the data stored in a computer program called the Total Education or Resource Management System (TERMS). The sheets were returned to the teachers who used them to record attendance for a two-week period before signing and submitting them, and receiving new computer-generated biweekly attendance scan sheets. On August 23, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12519-CAO/COO/FO/FTE), that any student who had never attended any period since the first day of school must have a withdrawn code entered into the TERMS program by August 27, 2007. Dr. Johnson e-mailed the Bulletin to her administrative staff and convened a meeting of that group to review it. Her secretary also e-mailed a reminder of the requirements to the staff on August 27, 2007. Teachers reported students who never attended school from the beginning of the year, the so-called "no-shows," by making handwritten notes or by drawing lines through the student's name on the attendance sheets, expecting those names to be removed from their rosters. Students who never showed up were not bubbled absent on the attendance sheets. A student aide in the student services office scanned the sheets, so the school's data processor, Angela Jones, did not see the teacher's notes and make changes in the computer. Once teachers kept getting biweekly attendance sheets with the names of no-shows and transfers on them, they started e-mailing or otherwise notifying Ms. Jones who began to keep a running list of no shows and transfers. Ms. Jones was not allowed to enter the withdrawal code in TERMS until authorized to do so by either Dr. Johnson or Dr. Carden, as shown by their e-mails. Rather than following the instructions in Bulletin # P-12519 to withdraw all no-shows by August 27, 2007, no-shows were treated like transfers and were not withdrawn until the student's new school requested their records. Dr. Johnson's claim that she was not aware that procedures outlined in the District's Bulletin of August 23, 2007, were not being followed by Ms. Jones and Dr. Carden, is not credible. She was present at the meetings in her office and her conference room, well after the August deadline, during which Ms. Jones continued to receive instructions to wait for approval to make withdrawals. On August 31, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12542-CAO/COO) that the District's enrollment count day was September 7, 2007, and that the count would be taken from TERMS. Dr. Johnson sent an e-mail to all teachers to count students, as directed in the Bulletin of August 23, by only including students who had been in attendance at least one period since school began on August 22, thereby excluding no-shows from the count. Prior to 2007, this would have been the enrollment number that the school faxed or e-mailed to the District. For the first time in 2007, the number used by the District was the number taken from TERMS summary enrollment screen that included no-shows at Independence. The District also relied on that data for its Full Time Equivalent (FTE) survey and report to the State Department of Education (DOE). The FTE count is used to determine per pupil funding by the State. The actual number of students at Independence on September 7, 2007, was 1188 but the number taken from the TERMS database and reported was 1214, a twenty-six student discrepancy that was later, after an audit, reduced to twenty-four. In October 2007, Dr. Johnson falsely verified the accuracy of the FTE survey that was, subsequent to the audit, determined to be an over-count of 23 students. Dr. Johnson testified that she verified the accuracy of the count relying on the work of Dr. Carden, Ms. Jones, Exceptional Student Education Coordinator Carol Lee, and ESOL Coordinator Ann Costillo. She denied attempting to fraudulently inflate the number to gain or maintain resources allocated by the District, but she knew there was a difference in the numbers based on a September report from Dr. Carden. She also knew that, if the teachers followed her instructions regarding how to count students, the "actual" number of 1214 from TERMS, written in by Dr. Carden, had to be incorrect. TERMS data also was uploaded to another program called Grade-Quick. When it was time to give grades at the end of nine weeks, Ms. Jones no longer had the ability to alter the rosters and teachers were required to give a grade to each student on their roster. David Shore was the Grade-Quick technical support person at Independence. At the suggestion of Dr. Johnson, he sought advice from the District's technical support person, Bruce Roland, who told him to have teachers give each no-show student a grade of "F" to avoid an error code. The uploaded grades for students who did not attend Independence, according to Mr. Roland, would be deleted from the District's mainframe. Fearing other consequences of giving "Fs," including the possibility of generating letters to parents whose children did not attend Independence, and doubting Mr. Shore's advice because he was relatively new in his position, some teachers refused to give "Fs" to no-shows. After discussions with Dr. Johnson, Mr. Shore instructed teachers to give a grade of "C" instead and to be sure also to give a conduct grade. One teacher apparently found a way to give a conduct grade, but no letter grade, to students who were not enrolled in her class and to somehow avoid a computer error code. Some time during the fall semester, anonymous complaints concerning the enrollment at Independence were made to the State Auditor General's Office, who referred the matter to an auditor in the District's office. In December 2007, the audit confirmed that the count at Independence was incorrect largely because no-shows and withdrawals were not withdrawn timely from the computer in TERMS before the District's initial count on August 27, 2007; before the District's eleven-day count on September 7, 2007; nor before Dr. Johnson twice verified the accuracy of the FTE count in October 2007. Dr. Johnson made no effort to make corrections, after she admittedly was aware of the errors in October, November, and December. Dr. Johnson blamed teachers who were unprofessional, racist, and disgruntled over her more strict adherence to the attendance rules for teacher planning and professional development days, and over proposed spending of A-plus money. She testified that they deliberately failed to bubble no-shows as absentees. That assertion contradicts the testimony of her witness that the proper procedure was followed by teachers who drew lines through the names of no-shows rather than bubbling them as absent. It also contradicts the instructions she gave in a memorandum to teachers, on October 5, 2007, telling them to write codes next to students' names on their rosters, NS for no- show, WD for withdrawn - If a student was present at least one day..., T for transfer, and A for add. Her memorandum instructs teachers to give the information to Ms. Jones on October 11, 2007. Ms. Jones said she did look at rosters for FTE reporting and she did make corrections. She too says her count was accurate at the time unless teachers withheld information. The teachers' rosters were maintained and, from a review of the class rosters, the auditor concluded that the error was made in not correcting TERMS to comply with teachers' reports. Dr. Johnson also blamed her supervisor, Marisol Ferrer, for sending a less experienced manager, Joe Patton, to attend a meeting, on October 11, 2007, with her of the Employee Building Council, a group that included some teachers who were antagonistic towards Dr. Johnson. It is true that only later did Mr. Patton recall that, after the meeting and after Dr. Johnson left, some of teachers told him there were problems with the student count at Independence. At the time, however, Mr. Patton did not tell Ms. Ferrer or Dr. Johnson about the comments. Dr. Johnson testified that, had she been told after that meeting on October 11th about the problems, she could have corrected the numbers before she submitted her verification of accuracy. She did know that Dr. Carden showed her two sets of numbers on September 7, 2007. Although she testified that she believed the fluctuations were normal because students come and go during the day for doctor's appointments or for other reasons, Dr. Johnson took no further steps to determine if that was in fact the cause of the discrepancy. After Dr. Johnson and Dr. Carden instructed Ms. Jones to begin making withdrawals after the October FTE report, some of the withdrawals were backdated showing the no-show students' withdrawal dates as the first day of school, August 22, 2007. The District submitted corrections to DOE before the deadline for incurring penalties, ultimately reducing the FTE count at Independence by 23 students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order suspending Respondent for twenty days without pay. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 16th day of April, 2009. COPIES FURNISHED: Frederick W. Ford, Esquire 2801 PGA Boulevard, Suite 110 Palm Beach Gardens, Florida 33410 Sonia Elizabeth Hill-Howard, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, C-302 Post Office Box 19239 West Palm Beach, Florida 33416-9239 Dr. Arthur C. Johnson, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, C-302 West Palm Beach, Florida 33416-9239 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500
The Issue Whether the Respondent, an elementary school teacher, should be disciplined under sections 1012.795 and 1012.796, Florida Statutes (2016),1/ for inappropriately disciplining a student in violation of Florida Administrative Code Rules 6A-10.081(2)(a)1. and 5.2/; and, if so, the appropriate discipline.
Findings Of Fact The Respondent holds Florida Educator Certificate 1197418, covering Elementary Education, English for Speakers of Other Languages (ESOL), Reading, and Exceptional Student Education. The certificate is valid through June 30, 2022. The Respondent began the 2016/2017 school year teaching second grade at Shingle Creek in Orlando, which is in the Orange County Public Schools (OCPS) school district. It was her fourth year of teaching there. Her teacher evaluations were satisfactory. She did not use corporal punishment, and did not yell or scream at her students. She had no disciplinary history. (She had one non-disciplinary directive for blurting out an expletive in pain when she fell in class and hurt her knee.) Shortly after the start of the 2016/2017 school year, the Respondent realized she had a student, B.K., who took things that did not belong to her. B.K. was bright and popular among the children in class, but she could not be relied on to tell the truth. From the beginning of the school year, the Respondent had to take steps to discipline B.K.’s misbehavior and try to correct it. Soon after the start of the school year, B.K. put a laptop computer in her back pack, instead of returning it to the charging cart in the classroom as all the other children did when they finished using it. At the end of the day, B.K. told the Respondent that another student put the laptop in her back pack. The other student denied it, and the Respondent was obliged to refer the matter to the school administration. An assistant principal investigated and interviewed B.K., who admitted to taking it. The Respondent also found her own personal books in B.K.’s back pack. B.K. falsely accused a classmate of putting them there. On another occasion, another teacher caught B.K. with the Respondent’s “Hello Kitty” flash drive. B.K. told the teacher that a friend had given it to her, which was false, and the teacher wrote a referral to administration. As a result of these incidents, the Respondent had a conference with B.K.’s parents. B.K.’s father reported that he had found books at home that did not belong to his daughter. B.K. admitted that she had taken them from the classroom. The Respondent was obliged to make a classroom referral. The Respondent continued to learn of other similar incidents. Once B.K. took two bags of candy the Respondent used to reward good behavior and achievement by her students. Another teacher saw B.K. distributing the candy to classroom friends outside the classroom and reported it to the Respondent, who realized it was her candy that had gone missing. After the candy incident, the Respondent again met with B.K.’s parents and decided to impose consequences in addition to the classroom referral to discipline B.K. for the theft of the candy—namely, she decided to withhold the prize she planned to give students on Thursday, October 13, for good behavior during the preceding month. (Friday, October 14, was a day off school.) She told B.K.’s parents about the consequences she planned to impose. As October 13 approached, B.K. continued to misbehave by taking things that did not belong to her, including a Post-It note dispenser and a bag of erasers. The Respondent reported to the school guidance counselor and assistant principal that B.K.’s misbehavior seemed to be escalating. During the last class period of the day on October 13, while the class was working on a science project, the Respondent called each student up to her desk individually to reward good behavior with points, prizes, candy, and to identify misbehavior to be corrected. Under the “class dojo” behavior system the Respondent was using, class participation was rewarded with points and corresponding “karate” belts. Good behavior was rewarded with candy. When it was B.K.’s turn, the Respondent explained that she was getting points and a belt for class participation but was not getting candy because of her taking things that did not belong to her, and not telling the truth. The Respondent told B.K. that she would have a “clean slate” going forward and would get points and both prizes and candy if she earned them with good behavior in the next month. Not long after the Respondent’s talk with B.K., another student said out loud that B.K. had candy that did not belong to her. The Respondent asked B.K. if she had candy, and B.K. denied it. The Respondent then asked her students to check to see if they had the candy they had just been given. One student, who sat next to B.K. and had put her candy in her desk, said hers was missing. The Respondent then asked B.K., who still denied taking the candy, to show her what was in her desk. B.K. just froze and did not comply. The Respondent repeated herself. B.K. again refused and began to get emotional. Because the desk was a “jumbled mess” of tissues, papers, food, a milk carton, pencils and other things, and because bending down low was difficult for the Respondent, the Respondent tipped the desk over enough for some of items in it to begin falling out on the floor. The missing candy was among the first several items that fell out on the floor. At this point, B.K. claimed that the student whose candy was missing had given it to her, which the other student denied. The Respondent then told B.K. that the Respondent was going to have to write B.K.’s parents a note about the incident. She also told B.K. to pick her things up off the floor and put them back in her desk. During these proceedings, B.K. became emotional and started crying. At one point, she kicked at her desk or chair. The Respondent had her sit up near the chalkboard until she calmed down. The Respondent sat down at her desk facing B.K. and told her she was very disappointed with her because of the talk they just had. Although most of the students had resumed working on their science projects, one child asked out loud if B.K. had stolen the candy. The Respondent did not directly answer the question. Instead, she said something like, “I’m not sure what you just saw and heard, but one thing we don’t do in this class is, we don’t steal, right? What don’t we do?” Some of the students who were listening repeated, “we don’t steal.” When things settled back down, the Respondent wrote a note to B.K.’s parents notifying them about the candy incident and telling them that B.K.’s behavior that day had been “in the red” (i.e., bad). B.K. went back to sitting at her desk, and the rest of the class period was uneventful. In fact, the school principal came to the Respondent’s classroom before the class period ended to deliver notices for the students to take home to their parents. Although she was not in the classroom long, she noticed nothing unusual. At home after school on October 13, B.K.’s mother asked her about the Respondent’s note. B.K. denied stealing candy. She told her parents that the Respondent gave all the other children in the class candy except her and accused her of taking a piece of candy, which she denied. B.K. then told them that the Respondent then kicked her chair, dumped her desk on the floor, made her clean it up and put her desk back in order, and made the other students line up and take turns hitting her hand hard in punishment. Her parents decided to talk to the Shingle Creek principal about it on the next school day, which was Monday. When B.K. and her parents arrived at school on Monday morning, they encountered and talked to several of B.K.’s classmates outside the school. At least two of the classmates were approached by B.K., who brought them to her parents. The evidence was unclear as to how many other classmates were involved, or how the conversations went. The language skills of the students in general were those of second-graders, and several of the children were speakers of English as a second language. B.K.’s parents speak English with a strong Haitian accent. For example, the words “hit” and “hate” sound very similar, and it is not easy to understand their spoken English. It is unclear exactly what was said, but B.K.’s parents came away from the conversations convinced that B.K. was telling the truth about what happened in class on October 13. It is also possible that the children’s memories and recollections were influenced by these conversations. B.K.’s parents then went to speak to the school’s principal. B.K. did not go to class but stayed with her parents in the principal’s office. After talking to the family, the principal telephoned OCPS’s senior manager of employee relations, who advised her to gather witness statements. The principal and several assistants began taking statements, starting with B.K. and her parents. After them, the Respondent was called to the principal’s office. Following the instructions given to all teachers by the teacher union, the Respondent declined to give a written statement without a lawyer or union representative present. She did have a conversation with her principal. The principal asked her to explain the situation with B.K. on Thursday. The Respondent told her about the candy incident, including tipping the desk to find the candy; about being very disappointed with B.K.; and about writing a note to B.K.’s parents. The Respondent recalls the principal asking if anything else happened, and she answered, no. The principal recalled the conversation a bit differently. She thought the Respondent admitted to dumping B.K.’s desk over, raising her voice, and being angry with B.K. She also remembered asking the Respondent if any of the other students hit B.K. and the Respondent answering that she did not see anyone hit her. The principal then began interviewing the Respondent’s students one by one. The interviews continued the rest of the morning and into lunch recess. Some statements were taken the next day. It is unclear to what extent the student witnesses discussed their statements among themselves during the day. The interviews were not video or audio-recorded. The interviewers thought they were asking proper, open-ended questions that did not suggest answers, but studies have shown that interviews usually are not as proper or open-ended as interviewers think they are, especially when the interviewers do not have extensive training. The training of the principal and her assistants in interview techniques was limited. Proper interview techniques help ensure that witness memories and statements are authentic, accurate, and reliable. They are especially important for child witnesses. The statements were not verbatim, or close to verbatim. Two of the statements were written with difficulty by the second- graders themselves and were not very articulate. The rest were written by the adult interviewers and signed by the second- graders so the process would go faster. These statements were written in a summary or conclusory fashion, without much detail, and were similar to one another, suggesting that they were recording the answers to questions of particular interest to the adult interviewers. The statement forms themselves had spaces designated for the “Date of Infraction” and “Location of Infraction,” and had signature blocks that said: “I swear/affirm the above and/or attached statements are true and correct. I understand that providing false information is punishable under the Student Code of Conduct.” It is doubtful that the second- graders would have understood what that meant. Fourteen (all but one) of the statements said that the Respondent told the students to hit or slap B.K.’s hand or hands. Some added that B.K. was crying; some added that the Respondent told them to hit hard, or harder. One statement said they did it because B.K. took candy, one said it was because B.K. was a thief, and one said it was because B.K. steals too much. Some of the statements were surprising because of the capabilities of the child supposedly giving it: one of the students was non-verbal and would not have been comfortable speaking to a stranger; another was autistic and unable to sequence information such as the days of the week; and another had behavioral and emotional issues that made him incapable of giving a statement. Some of the second-graders added remarkable features in their statements that were not mentioned by anyone else, or by just a few: one said the Respondent threw B.K. down to the ground; three, including one attributed to the child with behavioral and emotional issues, said that the Respondent threatened to call the police; one said that the Respondent told B.K. to put her desk by the wall; and one said the Respondent told the class to avoid B.K. During the morning on October 17, several of the Respondent’s students told her that B.K.’s parents had talked to them before school about the Respondent making them hit or slap their child on the hand, and told her that B.K. no longer was in the Respondent’s class. After the second-graders’ statements were gathered, the school principal presented them to the OCPS senior manager of employee relations, who scheduled a pre-determination meeting on October 21. His investigative report stated: 16 student statements were obtained; 15 confirmed being directed by the teacher to hit B.K. on the hand; 3 confirmed the teacher telling the students to repeat “don’t steal”; 8 confirmed the teacher yelling; 5 confirmed the teacher telling them to hit B.K. hard; 3 confirmed the teacher calling B.K. a thief; and 3 confirmed the teacher saying she was going to call the police. The investigative report also stated that the Respondent: admitted getting angry and raising her voice; admitted pouring out the contents of the student’s desk; admitted saying and having the students repeat, “what is it we don’t do in class? We don’t steal”; stated she did not recall directing the students to hit B.K.; did not know if B.K. was hit “on October 17,” but did know that B.K. lies; and did not report the incident to the school administration on October 17. Based on the investigative report, OCPS terminated the Respondent’s employment. The Respondent filed a grievance which was arbitrated under the terms of the teacher union contract. When the matter was referred to the Petitioner, another investigation was conducted. On February 17, 2017, the second- graders were interviewed again by the Petitioner’s investigator. The investigator asked the questions and wrote the answers. The second-graders were asked to confirm that the answers were written down correctly and signed their statements. Like the principal and her assistants, the Petitioner’s investigator believed she asked non-suggestive, open-ended questions. Like the principal and her assistants, the Petitioner’s investigator did not have extensive training in the proper techniques for manner of interviewing children. Like the interviews conducted by the principal and her assistants, the Petitioner’s investigator did not video or audio-record her interviews. Each student interviewed by the Petitioner’s investigator stated that the Respondent told the students to “slap” B.K.’s on the hand as hard as they could and that slapping B.K. made the student feel “sad.” One said that B.K. cried. One said the Respondent made the class stand in a circle and take turns slapping B.K. on the hand. Unlike the school principal and her assistants, the Petitioner’s investigator had the students describe how hard they were supposed to hit B.K. on a scale of 1 to 5. This question elicited several responses that they were told to hit “hard,” one that they were told to hit “as hard as we could,” and one that gave a rating of 5. In the statements gathered by the Petitioner’s investigator, several of the students mentioned that the Respondent told them to pretend B.K. was a ghost, and several said the Respondent told them not to tell anyone about what happened. Oddly, neither of these remarkable details was mentioned in any of the statements taken by the principal and her assistants. The Respondent’s grievance was arbitrated in May 2017. After a three-day hearing, the termination was upheld, despite testimony from another teacher that she overheard B.K. admit to stealing candy and to lying to get the Respondent in trouble because she was tired of getting caught stealing by the Respondent. Several of the students who gave statements testified at both the arbitration hearing and the hearing in this case. Several were deposed before testifying. The Petitioner in her Proposed Recommended Order suggested that credibility issues arising from the prior events should be ignored because they were cured by the live testimony. That is not true. Issues remain as to whether the students’ live testimony was influenced by what preceded. In addition, their testimony at the hearing was confusing and inconsistent in many respects. Two of the students testified that the students formed a circle around B.K., while three said they formed a line. One said the line was in the shape of a C or J. One specified that they hit B.K.’s hand while she was either in a corner or by a desk where the sink was located. One said B.K. was standing in front of another student’s desk. Two said B.K. was standing in the middle of the classroom. One said B.K.’s hand was held out palm down. Another said it was palm up. One said the Respondent held B.K.’s hand out. The evidence, taken as a whole, is not clear and convincing that the Respondent had her students hit or slap B.K. as punishment for taking the candy. While several children made statements that included some version of this alleged incident, they all started with B.K., who was overheard saying she was lying, and the other children’s statements are fraught with questions that make them unreliable and insufficient to prove those facts clearly and convincingly. Meanwhile, the Respondent’s version of what happened, while self-serving, is more persuasive. Her refusal to give a written statement, and her manner of answering questions, may have raised suspicions on the part of the school principal, and may have contributed to a number of misunderstandings by the principal and B.K.’s parents, but they do not prove that the Respondent was lying. The Respondent’s conduct that was proven by the evidence did not rise to the level of a disciplinable failure to make reasonable effort to protect B.K. from conditions harmful to learning and/or to her mental and/or physical health and/or safety, and did not intentionally expose B.K. to unnecessary embarrassment or disparagement. What the Respondent actually did was within the realm of making reasonable efforts to correct B.K.’s problem behaviors and to teach her and her classmates how to behave properly and acceptably, while at the same time trying to keep order in the classroom and continue delivering academic instruction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding the Respondent not guilty and dismissing the Amended Administrative Complaint. DONE AND ENTERED this 1st day of May, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 1st day of May, 2018.
The Issue The issues are whether Respondent committed the acts alleged in the Amended Administrative Complaint; whether the alleged conduct constitutes violations of Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes,1 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(5)(d), and 6B-1.006(5)(e); and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at hearing and the entire record in this proceeding, the following Findings of Fact are made: Respondent holds Florida Educator Certificate No. 544113 that covers the areas of educational leadership, business education, teacher coordinator of cooperative education, and vocational office education. At all times relevant to this proceeding, and since about 1983, Respondent was employed by the Hillsborough County School Board. During most of her tenure with the Hillsborough County School Board, Respondent has worked as a classroom teacher. Respondent's employment with the School Board was terminated on October 13, 2004. 2001 Fall Semester In the 2001 fall semester, Respondent was a teacher in the business department at Jefferson High School ("Jefferson"). At all times relevant hereto, Virginia McGinn, was also a teacher in the business department at Jefferson. As a professional colleague, Ms. McGinn communicated and had contact with Respondent during the workday. During the 2001 fall semester, Respondent was teaching her second-period class in the classroom that was right across from the teaching planning area. Ms. McGinn had a planning period during that time and was walking toward the teacher planning area, when she heard a lot of yelling coming from Respondent's classroom. Observing that the door to Respondent's classroom was open, Ms. McGinn stood in the doorway for a minute and looked in the classroom to see what was going on and to make sure everything was okay. While standing in the doorway, Ms. McGinn observed and heard Respondent yelling and noticed that Respondent seemed and sounded very agitated. After Ms. McGinn determined that everything was all right, she left the doorway of Respondent's classroom and went to the teaching planning area. When Ms. McGinn arrived at the teaching planning area, one other teacher was there, Ms. Zale. A few minutes later and after her class was over, Respondent came to the teacher planning area "in a huff" and immediately took off her blouse. Respondent was wearing a camisole underneath the blouse. According to Respondent she took off her blouse that day because she was extremely hot. Respondent then began "ranting and raving" about what had just occurred in her classroom and seemed to be very agitated and angry. Ms. McGinn and Ms. Zale asked Respondent what had happened in her classroom. Respondent explained that she had been correcting a student, and when she told him something, the student started sucking his teeth. Respondent then stated that when the student started sucking his teeth, she "just went off." As Respondent was recounting what had happened in her classroom (the student sucking his teeth), she still appeared to be very agitated. Ms. McGinn and Ms. Zale tried talking to Respondent in order to get her to calm down. Eventually, Respondent "did calm down some." However, Ms. McGinn described Respondent's behavior during the episode and prior to her calming down, as "abnormal" and "overly agitated." The camisole that was revealed when Respondent took off her blouse was a sleeveless undergarment with thin straps. However, the camisole was not lacy or made of transparent fabric and did not reveal any inappropriate parts of Respondent's body. In fact, the camisole looked similar to some shirts that are worn as outer garments. Nonetheless, that type of undergarment was not typically the kind of top that would be worn as a blouse or other outer garment by a teacher in a school. The teaching planning area is an area used primarily by teachers. According to Respondent, she took off her blouse that day because she was extremely hot. At that time, there were only two female teachers in the teaching planning area. However, there are times when male teachers are in the teaching planning area and times when students and visitors are in the area. Accordingly, the teaching planning area was not an appropriate area for Respondent to remove her blouse even though she was wearing a camisole underneath the blouse. September 20, 2001 Incident In September 2001, in addition to her responsibilities as a business education teacher at Jefferson, Respondent was assigned a senior homeroom class. The classroom in which Respondent's homeroom class met was used by Respondent only for the homeroom period. The homeroom period was immediately after the first period and, generally, was about five or ten minutes. However, on certain days, the school's rotating schedule allowed for a 30-minute homeroom period during which students attended "club" meetings or remained in homeroom for study hall or a silent reading period. On September 19, 2001, Respondent rearranged the student desks in the classroom where her homeroom class met to address disciplinary issues with some of her homeroom students. Prior to making this change, Respondent conferred with Gwendolyn Henderson, then chairperson of the business department, who thought the change would be fine. On September 20, 2001, Respondent arrived for the homeroom period in the assigned classroom. Most of Respondent's homeroom students were already in the classroom and in their seats when Respondent arrived. Upon entering the classroom, Respondent discovered that the student desks/tables were not arranged as she had placed them the previous day. After looking around the classroom for about a minute, Respondent yelled out, "Which one of [you] changed my tables around? This is my class. Everyone move to the back of the room now." Respondent then began pushing one of the tables around and, while doing so, the table hit a student's hand as that student was trying to move out of the way. After the table hit the student's hand, Respondent yelled out, "[You] better move out of my way." Respondent then quickly pushed another table, and as she was doing so, that table hit another student's knee. As Respondent was moving the tables, she kept repeating, "This is my room. This is my room. No one [should] touch anything in my room." Respondent again asked the students, "Who moved my tables around?" She stated, "This is not the way I put them [tables/student desks]." Finally, Respondent asked if someone in the first-period class, the class immediately before the homeroom period, moved the tables. A student in Respondent's homeroom, who was also in the first-period class, told Respondent that the tables "were like this in the first period class." By this time, all the students had moved to the back of the room as they had been instructed to do. Respondent then ran out of the classroom. After Respondent left the classroom, her homeroom students worked together and placed the tables in the "formation" Respondent had them the previous day. At some point during the incident, two students in Respondent's homeroom left the classroom, went to Gwendolyn Henderson's office and told her what had happened in their homeroom. Based on Ms. Henderson's observation, the two students were upset when they came to her office to report the incident. While the two students were in her office, Ms. Henderson heard Respondent come into the area and go to the teacher planning area. Ms. Henderson left her office and went to the teaching planning area to talk to Respondent. When Ms. Henderson entered the teaching planning area, Respondent asked her who had moved the furniture in the classroom. Ms. Henderson did not know who had moved the furniture and could not answer Respondent's question. However, it was apparent to her that Respondent was very upset about the furniture being moved. Henderson attempted to calm Respondent by repeatedly telling her to "calm down, [and] breathe." At some point, Respondent picked up the telephone, called the school office, and demanded that the school principal immediately come to the teacher planning area. In response to Respondent's call, Mr. Cugno, assistant principal at Jefferson, came to the teacher planning area. By the time Mr. Cugno arrived, Respondent, though still upset, was beginning to calm down. When Mr. Cugno entered the teacher planning area, Ms. Henderson was standing near Respondent, holding Respondent's arm and telling her to breathe. Mr. Cugno then approached Respondent and told her to calm down. It is unclear how close Mr. Cugno was to her, but according to Respondent, he was "right up in [her] face" and telling her to calm down.4 Respondent's perception was that Mr. Cugno had yelled at her and, as a result, she became upset and told him, "I will not calm down." At that point, Mr. Cugno used his radio to call for the school's resource officer for assistance. After he completed that call, Respondent asked, "Mr. Cugno, how dare you?" Ms. Henderson was "shocked" that Mr. Cugno had called the "police" (school resource officer) in this situation. For her part, Ms. Henderson had no concerns that anyone's safety was in jeopardy, and she was not "in fear," notwithstanding Respondent's behavior that day. Prior to the school resource officer's arriving, Respondent told Ms. Henderson and Mr. Cugno that she was going for a walk and left the teacher planning area. At some point after Respondent left the teacher planning area, Daniel Rivero, principal at Jefferson, found Respondent sitting on a bench outside the main office. Mr. Rivero, who was aware of the situation that had transpired that day, asked Respondent if she would come into his office, but she refused to do so. He then asked Respondent for the second time if she would come into his office. Respondent again refused to go into Mr. Rivera's office; instead, she just sat on the bench outside the office. Unsure of what to do in this situation, Mr. Rivera contacted Linda Kipley, the general manager for Professional Standards of the Hillsborough County School District ("School District"), for guidance. Referral to Employee Assistance Program On October 2, 2001, Respondent was directed by the School District to participate in the Employee Assistance Program ("EAP"). The School District officials required this mandatory referral due to concerns about whether Respondent should be in the classroom with children. After being referred to the School District's EPA, Respondent participated willingly in the program. Once the School District makes a mandatory referral, Ms. Kipley's office receives information from the provider pertaining to the employee's progress and compliance with the referral, as well as the employee's readiness to return to work. On or about October 12, 2001, after meeting with Respondent, Judy Kuntz, Petitioner's EAP provider, telephoned Ms. Kipley and provided the following general information: (a) Respondent was very cooperative; (b) Respondent wanted to make changes; and (c) the provider and Respondent had discussed some things that had gone on in Respondent's past. The provider also advised Ms. Kipley that Respondent would need to continue with counseling on a regular basis and needed to be out of the classroom "a week or more." Finally, the provider indicated that she would contact Ms. Kipley later in October to "officially" release Respondent from mandatory referral. On October 29, 2001, Ms. Kuntz, called to update Ms. Kipley on Respondent's progress. According to Mr. Kipley's notes, Ms. Kuntz reported that she had diagnosed Respondent with post-traumatic stress disorder ("PTSD") and that Respondent "understands where her anger is coming from and realizes that she needs to redirect it in another way [and] cannot take it out on others." Ms. Kipley's notes also reflect that the provider recommended six to 12 months of additional counseling, reported that Respondent is very agreeable to counseling, and advised that Respondent was not ready to return to the classroom. Finally, according to Ms. Kipley's notes, the provider reported that she "perceives [Respondent] as extremely intelligent and willing to improve." As a result of the October 29, 2001, report from the EAP, Respondent remained on paid leave status from about November 2001 through early-May 2002. 2002-2003 and 2003-2004 School Years From May 10, 2002, through the end of her contract year (end of May or June 2002), Respondent was assigned to Erwin Technical Center, a vocational school for adults. During the 2002-2003 and 2003-2004 school years, Respondent was assigned to Bloomingdale High School ("Bloomingdale"). Respondent was a business education teacher at Bloomingdale in the 2002-2003 and 2003-2004 school years. During the 2002-2003 school year, there is no indication that Respondent was involved in incidents or behaviors that are at issue in this case. Incident With Colleague (2003-2004) In 2003-2004 school years, Jeffrey Peltzer was a teacher at Bloomingdale who taught computer support and web design. One morning Respondent came into Mr. Peltzer's classroom demanding an installation CD for Microsoft Office. Even though Mr. Peltzer sometimes helped the business education classes, he did not have access to software and was not responsible for providing software to those classes. As Mr. Peltzer was attempting to explain this to Respondent, she put her hand near his face and said, "Oh, no you don't." Respondent then ran over to Jack Pallin, a teacher who was in the classroom and said, "You saw what he did to me." Mr. Pallin responded, "I didn't see him [Mr. Peltzer] do anything." Respondent filed a grievance against Mr. Peltzer, presumably related to the installation CD. The grievance was resolved through e-mail communication between Ms. Kipley and Respondent. Mr. Peltzer had no first-hand knowledge about the grievance. Rather, it was his "understanding" that Respondent attempted to file a grievance against him, but he never saw any official grievance. In fact, Mr. Peltzer considered the matter between him and Respondent resolved and simply viewed it as a disagreement between two teachers. Media Center Incident (Fall 2003) At hearing, Clara O'Dell, then department chair at Bloomingdale, testified that on October 23, 2003, Respondent's students came to the media center/computer lab ("media center"). She also testified that the students began arriving at 2:08 p.m., and by 2:15 p.m., all of Respondent's students were in the media center; and that Respondent came into the media center at 2:15 p.m., stayed there for 15 minutes and then left. According to Ms. O'Dell, after Respondent left the media center, she went to the main office, signed out at 2:32 p.m., and noted that she had the approval of the principal to leave early. In a memo dated November 12, 2003, Ms. O'Dell states in part: It has been brought to my attention[5] that you sent your classes to the Media Center with a substitute teacher on the two days that you had CRISS training. [October 28 and November 4]. This caused problems and is against District Policy. . . On the first day of CRISS training your sub was sent back to the classroom. On the second day, your sub was allowed to stay because (1) she had served as a sub in the Media Center . . . . The November 12, 2003, memo indicates the following: on October 28, 2003, Respondent's students were not supervised in the media center because someone sent the substitute teacher assigned to cover Respondent's class back to the classroom; (b) on November 4, 2003, a substitute teacher was in the media center with the students; and (c) on October 28 and November 4, 2003, Respondent was released from her classes to attend some type of training. Student Schedule Change (January 2004) Chris Bowden was assistant principal for student affairs at Bloomingdale in the 2003-2004 school year. At the beginning of the semester, students at Bloomingdale were given the opportunity to change their class schedules. In January 2004, a student in Respondent's business education class, D.W., received a schedule change that moved her from Respondent's seventh-period class to her fifth-period class. The schedule change was necessary to accommodate the student's geometry course. Respondent received the schedule change for D.W. on Tuesday, January 6, 2004. Upon learning of the schedule change, Respondent sent Mr. Bowden an e-mail expressing her concern that the change would impact the "balancing of her class." Respondent also indicated her preference was that D.W. stay in the seventh-period class. In an e-mail response, Mr. Bowden advised Respondent that he would continue to monitor her class loads. Mr. Bowden also indicated that once the elective schedule change period was over, he would make the necessary adjustments to balance Respondent's classes, but that D.W.'s schedule change should be honored. On January 7, 2004, D.W. reported to Mr. Bowden that she went to Respondent's fifth-period class, but was not accepted in the class by Respondent.6 Mr. Bowden decided to escort the student to class to help her earn entry in the class and to clarify any misunderstanding Respondent may have had regarding D.W.'s schedule. At that point, even though Mr. Bowden had sent Respondent an e-mail asking her to honor D.W.'s schedule change, he was not sure Respondent had opened and read the email. Before Mr. Bowden could escort D.W. to Respondent's fifth-period class, the student asked if she could be removed from Respondent's class, and Mr. Bowden granted that request. Although Mr. Bowden made a commitment to allow D.W. to take a fifth-period class other than Respondent's class, prior to such change, D.W. had to "sign out" of Respondent's class. This school-wide procedure was required to provide teachers with notice when students were no longer assigned to their classes and, thus, could be taken off the class roll. In accordance with that procedure, D.W. was instructed to go and "sign out" from Respondent's fifth-period class and then present the schedule change to her new fifth-period teacher. When D.W. returned to Respondent's class, Respondent did not sign the student out of her fifth-period class because she did not believe that D.W. was not in her fifth-period class. Even though Respondent did not complete or sign D.W.'s form as required for the student to be "signed out" of Respondent's class, Respondent wrote a note on the form which stated, "[D.W.] is not in my fifth period [class]. She attended 5th yesterday. I think she skipped her 5th [with] Mr. M. Mason." Under the note, Respondent signed her name. The student returned to Mr. Bowden's office and told him that Respondent would not sign her out of the fifth-period class. Mr. Bowden then signed the schedule change form so the student could begin attending her new fifth-period class. On January 7, 2004, after Respondent did not execute the form allowing D.W. to "sign out" of Respondent's fifth- period class, Mr. Bowden went to Respondent's classroom to explain that there was obviously a misunderstanding. Respondent's class had just left for lunch, and no students were in the class during the following interaction. In his discussion with Respondent, Mr. Bowden attempted to clarify what he presumed to be a misunderstanding on Respondent's part. However, Respondent told him that there was no misunderstanding and that she understood perfectly. At the time, Respondent was sitting at her desk writing a student referral, which is a request for disciplinary action for an infraction of school rules. The referral was for D.W. based on Respondent's belief that the student had skipped her assigned fifth-period class with another teacher the previous day. Mr. Bowden believed that because D.W. had already signed out of Respondent's fifth and seventh-period classes, the student was no longer in any of Respondent's classes or Respondent's responsibility. In accordance with that belief, Mr. Bowden directed Respondent to cease writing the referral and told her that if she wrote the referral, it would not be acted upon. Respondent then told Mr. Bowden that she was going to keep the referral for her records. After the disciplinary referral issue was resolved, Mr. Bowden again reiterated to Respondent that there had been a misunderstanding concerning D.W.'s schedule change. During Respondent' and Mr. Bowden's exchange about the misunderstanding about the schedule change, Mr. Bowden observed that Respondent seemed disturbed and agitated. He also noticed that the issue concerning the schedule change for D.W. appeared to be very upsetting to Respondent. Attempts to Meet With Respondent (January 2004) Based on Respondent's reaction to the schedule change issue, Mr. Bowden decided he needed to meet with Respondent. He then attempted to talk with Respondent about scheduling the meeting, but Respondent cut him off in mid-sentence and told him, "This conference is over." She then stood up from her desk, let out an audible sound of "frustration, distress, a sigh, a moan," walked past Mr. Bowden, and then hurried down the hallway. At that time, the students in the corridor were in the midst of going to lunch. Meanwhile, Respondent continued hurrying, though not running, down the hallway in an apparent attempt to gain space between her and Mr. Bowden. The reason she left the classroom was that Mr. Bowden had insulted her, and she wanted to get away from him. Before Respondent left her classroom, it was clear to Mr. Bowden that: (a) D.W.'s schedule change issue had been resolved; (b) Respondent had agreed to not submit a disciplinary referral on D.W.; and (c) Respondent was upset about the scheduling issue and did not want to talk about that issue. Nonetheless, Mr. Bowden felt it was necessary to meet with Respondent about the scheduling issue and to do so as soon as possible. After Respondent exited her classroom, Mr. Bowden went to his office, confirmed that Respondent did not have a sixth-period class, and determined that that was a convenient time to meet with Respondent. What he did not know was that part of the sixth period was also Respondent's lunch period. Before he could contact Respondent about scheduling the meeting and between the fifth and sixth periods, Mr. Bowden saw Respondent sitting outside of the student affairs office at the beginning of the sixth period. Mr. Bowden then approached Respondent, indicated he had verified that she did not have a class that period, and told her that he needed to meet with her. Respondent then stated in a loud voice, "I am not going to meet with you; you know I do not like to meet with you and I am not going to do it."7 Respondent eventually moved from a side corridor that ran between the student affairs office and the main office and into the main corridor of the school. While in the main corridor, Respondent stopped walking and turned to Mr. Bowden and said, "Why do you want to meet with me?" At some point, Respondent was standing with her hands behind her back, staring at the ceiling. Mr. Bowden attempted to persuade Respondent to go into his office in the main office suite, which was about 15 feet away, rather than have this discussion in the main corridor. During that exchange, students were exiting the lunchroom, which was across from the main office. One teacher who was on duty and was very close to the main office area, heard the interaction between Mr. Bowden and Respondent. However, it was his impression that none of the students and staff members heard the exchange. This was evidenced by the fact that no students or staff members in the corridor at that time stopped and looked toward Mr. Bowden and Respondent. Mr. Bowden tried to direct her from the corridor into his office so he could gauge Respondent's mental state and determine whether she could teach her seventh-period class. Mr. Bowden also wanted to determine if he and Respondent could reach closure on the D.W. scheduling issue. Respondent followed Mr. Bowden's directive and came into the lobby of the main office, but would not go into Mr. Bowden's office. Instead, she told him, "I will meet you right here." She also asked him on what authority was he requesting to meet with her. Mr. Bowden explained that as the administrator on campus, he had the authority to request the meeting. Respondent then said to Mr. Bowden in a condescending manner, "I've told you, I am not going to meet with you. Do you understand that?" Respondent asked Mr. Bowden if she could make a telephone call, and he then directed her to an office where she could use the phone. While Respondent was using the telephone, Mr. Bowden left the main office to arrange for someone to cover Respondent's seventh-period class. After Respondent completed her call, she left the main office. At some point thereafter, Mr. Bowden learned from his secretary that Petitioner had left the office. Prior to the sixth period's ending, Mr. Bowden eventually found Petitioner in her classroom with another teacher, Fadia Richardson. After Ms. Richardson left the classroom, Mr. Bowden told Respondent that her seventh-period class would be arriving soon and that she should not be in the classroom when they arrived. Respondent went over to her desk where she had a jacket, put her arms through the jacket, pulled the jacket over her head, and turned her back to Mr. Bowden. From that point, when Mr. Bowden was trying to talk to Respondent, she placed her hands over her ears or fingers in her ears, looked away from Mr. Bowden into the corner and said, "I'm not listening to you anymore. I'm not listening to you anymore." Mr. Bowden was concerned about Respondent's behavior and found it disturbing to watch a person get to this point. Mr. Bowden acknowledged that he was not a mental health professional or law enforcement officer, and did not "know what [he] was dealing with." However, Mr. Bowden believed "that we were in the middle of some sort of breakdown." While Respondent continued to display the behavior described above, Mr. Bowden continually and repeatedly said to Respondent, "You can not be here when your students arrive." At that point, Mr. Bowden's primary concern was that Respondent leave the classroom before the 25 or 30 students arrived for Respondent's seventh-period class. Prior to the students' arriving for the seventh period, Respondent left the classroom. Because Mr. Bowden did not know what Respondent's mental state was at the time, he decided not to pursue her. Instead, Mr. Bowden followed up to make sure there was another teacher to cover Respondent's seventh-period class. He then went to his duty area, the main corridor outside the main office, to supervise the class change. While he was in the main corridor, Mr. Bowden's secretary informed him that Respondent was waiting for him in the main office. Mr. Bowden went to the main office, saw Respondent sitting quietly on a sofa waiting for him, and observed that she now had a "normal demeanor." Mr. Bowden was surprised that Respondent had come to the office, but given her calm demeanor at that time, he asked if she was there to meet with him. In response, Respondent stated emphatically that she was not going to meet with him. Elizabeth Stelter, the school principal at Bloomingdale, came into the area and heard the exchange between Mr. Bowden and Respondent and offered to sit in on the conference as a third party. Respondent then again stated, "I'm not meeting with him." At that point and with only about an hour remaining in the school day, Ms. Stelter told Respondent that she was free to leave school for the day. After the January 7, 2004, incident involving Respondent's failure to meet with Mr. Bowden, Respondent was removed from the classroom at Bloomingdale. The Jefferson and Bloomingdale incidents were similar in that both involved a male school administrator directing Respondent to come into the office area to meet with that administrator about her (Respondent's) conduct. Grievance Filed by Respondent On January 8, 2004, Ms. Kipley spoke with Respondent about the incident involving Mr. Bowden that happened the day before. Respondent discussed her feelings about the incident and indicated that she felt that the administration was out to get her and that she was being harassed by Mr. Bowden. Respondent also indicated she was upset that Mr. Bowden had interrupted her during her lunch time and believed that he should have approached her at another time. During the meeting, Respondent was visibly upset, but she was even-tempered and not loud. On an unspecified date, Respondent filed a grievance against Mr. Bowden. That grievance was determined to be unfounded. Fitness-for-Duty Evaluation On January 26, 2004, Ms. Kipley informed Respondent that she would have to undergo a fitness-for-duty evaluation. This evaluation was being conducted because of the School District's concern about what appeared to be unstable behavior and insubordinate behavior. The School District wanted this in-depth evaluation to determine: (a) whether Respondent was fit to perform her duties as a classroom teacher; and whether she could safely instruct children and interact appropriately with her colleagues, peers and administrators. Evaluation Results The School District referred Respondent to James Edgar, M.D., for a fitness-for-duty evaluation "because of a pattern of unstable and insubordinate behavior toward parents, students and administration." Dr. Edgar conducted the evaluation in or about early March 2004 and prepared a report summarizing the results of that assessment. Based on the evaluation, Dr. Edgar reached the following conclusions: I find no psychiatric disorder that would account for "pattern of unstable or insubordinate behavior toward parents, students and administrators". From a psychiatric perspective, [Respondent] has no impairment that would interfere with her ability to safely instruct minor children, appropriately interact with students, parents, staff and the administration. Dr. Edgar's report notes that the results of the evaluation are based on information provided by Respondent and records provided by the School District and collateral sources. The specific records provided by the School District were not described or identified. Dr. Edgar's report notes that Respondent advised him of Dr. Feldman's diagnosis of PTSD and that she had been seeing Dr. Feldman for "problems with anger" since 2001. With regard to the PTSD diagnosis, Dr. Edgar indicated that he had not reviewed the records of Dr. Feldman and his evaluation had found no evidence to support that diagnosis. Notwithstanding his conclusion, Dr. Edgar's report states that "additional information not disclosed to [him] could significantly alter the assessment results." Respondent's Current Status During this proceeding, Respondent explained, but did not attempt to defend or excuse her conduct that is at issue in this proceeding. According to Respondent, she realized only after the fact, and after therapy, that Mr. Cugno's voice was almost identical to one of the people who had been aggressive toward her and that Mr. Cugno's "getting in her face" definitely did trigger an episode. Respondent acknowledges that when she went in for her mandatory EPA evaluation in 2001, she was experiencing intense and sudden anger, but felt powerless to prevent it. However, years after receiving that diagnosis and therapy, Respondent is better able to deal with that issue. In therapy, Respondent has learned (a) what will trigger an episode with her and how to guard against it; (b) how to remain aware of the surroundings; (c) how she is interacting with those surroundings and to remove herself from the situation whenever possible; and (d) how to use relaxation techniques, such as deep breathing. Respondent's Disciplinary/Professional Record Except for this case, there have been no disciplinary actions brought against Respondent's educator's certificate. Throughout Respondent's teaching career, she has consistently earned satisfactory ratings on her performance evaluations. Even with the conduct at issue in this proceeding, there have been no allegations regarding Respondent's overall effectiveness in terms of instruction and classroom management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission dismissing, in its entirety, the Amended Administrative Complaint against Respondent, Debra Satchel. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 30th day of June, 2010.
The Issue Whether Respondent engaged in the conduct alleged in the Statement of Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:5 The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in St. Lucie County, Florida, (including, among others, Parkway Elementary School, Woodland Academy, Westwood High School, Centennial High School, and Port St. Lucie High School) and for otherwise providing public instruction to school-aged children in the county. Among the School Board's instructional programs is its Hospitalized/Homebound Services Program (Program), which serves "students who are hospitalized [in St. Lucie County] or [otherwise] not able to come to school for at least three weeks." Instructional services are provided to students in the Program in out-of-school settings within the jurisdictional boundaries of St. Lucie County: at the hospital (if the student is hospitalized6) or at the student's home (if the student is homebound). These services are furnished through certified teachers who go to where the students are confined to provide them with instruction. "[M]ost [but not all] of the teachers . . . providing services in [the Program] are teachers who teach during the course of the [regular school] day . . . at [the School Board's] schools." In addition to receiving their regular salaries, these teachers are compensated at an hourly rate of $17.00 per hour for the time that they spend with the hospitalized or homebound students to whom they are assigned. They are also paid at that same rate ($17.00 per hour) for the time that they spend engaging in hospitalized/homebound "pre-planning" (up to a maximum of one hour per student assignment) and hospitalized/homebound "post-planning" (up to a maximum of one hour per student assignment). During "pre-planning," the hospitalized/homebound teacher (H/H teacher) engages in the preparations necessary for providing instructional services to the hospitalized or homebound student. These preparations include meeting with the guidance counselor and teachers at the student's home school to determine what instruction the student will be receiving and to ascertain the role, if any, the home school will play in the instructional process. "[O]btaining [needed] books and materials and creating [any necessary] lesson plans" are among the other things that an H/H teacher is expected to take care of during his or her "pre-planning" time. "Post-planning" time is for the H/H teacher to complete the "dismissal process," which involves turning in paperwork and "meet[ing] with the secretary in the [P]rogram." In addition to the compensation they receive for the actual contact they have with their assigned students and for their "pre-planning" and "post-planning" time, H/H teachers also get paid ($8.50, or one half of their hourly rate) "for their inconvenience" each time they make a scheduled visit to a student's home to provide instruction and no one is there (which happens infrequently). H/H teachers are to "reinitiate services" following such a student "no show" only "after contact ha[s] been made with the home to be certain that the student w[ill] be present." To get paid, H/H teachers must submit completed Hospitalized/Homebound Service Logs (H/H Service Logs) for each assigned student, documenting the dates and times they spent with the student, as well as their "pre-planning" and "post- planning" time and any student "no shows." On each occasion that they visit with a student, H/H teachers must enter on the H/H Service Log for that student the date and the starting and ending times of the visit7 and obtain (on the "Parent Signature" line next to these entries) the signature of the student's parent or other responsible adult present (as verification that the visit was made as indicated by the teacher). Because "pre-planning," "post-planning," and student "no shows" do not involve actual student contact, there is no requirement that (nor reason for) the H/H teacher to obtain the signature of the student's parent or the parent's surrogate to verify that the teacher's entries on the H/H Service Log of "pre-planning" and "post-planning" time and student "no shows" are accurate. H/H teachers are not compensated for the time that they spend traveling in connection with the discharge of their duties, but they are reimbursed for such travel, on a per trip basis, for their mileage in excess of ten miles. To receive such reimbursement, they must submit a completed Monthly Travel and Request for Reimbursement Form reflecting the dates of travel and, for each trip, "from where to where" they traveled, the trip's purpose, and the total number of miles traveled. The foregoing Program policies are of a long-standing nature and were in effect at all times material to the instant case. H/H teachers report to a Program Specialist, who oversees "the day-to-day operations of the Program." Billy Tomlinson was the Program Specialist from 1989 to 1994. Mr. Tomlinson's successor was Bennet Buckles, Jr., who remained in the position until the beginning of the 1999-2000 school year, when Brenda Washington became the Program Specialist. Ms. Washington was the Program Specialist during the 1999-2000 and 2000-2001 school years. Ms. Washington was replaced by Talecia Jones. Karen Clover is the current Program Specialist. Immediately above the Program Specialist in the chain of command is the School Board's Director of Exceptional Student Education,8 whose immediate supervisor is the School Board's Executive Director of Student Services. The Director of Exceptional Student Education and the Executive Director of Student Services are administrators who have the authority to establish and modify Program policies. Sandra Akre is now, and has been since approximately 1998, the School Board's Director of Exceptional Student Education. Barbara Slaga is now, and has been since 1992, the School Board's Executive Director of Student Services. It is expected that any questions that an H/H teacher has regarding the Program will first be directed to the Program Specialist; however, H/H teachers are free to consult with Ms. Akre and Ms. Slaga, particularly if the teachers are told something by the Program Specialist that "seem[s] to be in conflict with past practice or what they have done before."9 The Program Specialist is a not an administrator, but rather is a "teacher on special assignment" responsible for seeing to it that Program policies are followed. The Program Specialist lacks the authority to permit an H/H teacher to receive compensation for more than one hour of "pre-planning" time per student (the maximum allowed under Program policy), even where "extraordinary circumstances" exist. Such a deviation from Program policy must be approved by an administrator. Among the duties of the Program Specialist is to train H/H teachers. A prerequisite to becoming and remaining an H/H teacher is participating in an annual training session conducted by the Program Specialist. This required training is "typically . . . provided at the beginning of the [school] year" and is "extensive." Each training session lasts "two to two-an-a-half hours [and] all the [Program] procedures and the rules" are covered, including the long-standing Program policies regarding H/H teacher compensation and reimbursement discussed above.10 The Program Specialist uses a training manual to facilitate training. The contents of the manual for H/H teachers are reviewed during training. A copy of the manual is given to each H/H teacher to keep and "use . . . as a reference." Training at the beginning of the 1999-2000 school year was jointly conducted by Ms. Washington, the new Program Specialist, and Mr. Buckles, her predecessor. The following school year, Ms. Washington conducted the training herself, using a new training manual that she had put together (2000-01 Manual or Manual). The 2000-01 Manual contained "more detail" on some subjects than the version it replaced. The following "Hospitalized/Homebound Procedures" were set forth in the 2000-01 Manual: Upon admission to the Hospitalized/Homebound Program, the referral form is generated from the Doctor and submitted to the Homebound office where it will be processed. A staffing will be held to determine eligibility for the program. As prescribed by rule 6A-6.03020(3) the IEP will be developed on an informal basis unless they are enrolled in ESE. If enrolled in ESE, then a school based staffing MUST take place. At this point a teacher will be assigned to provide the educational program. The assignment of the teacher will be determined by the ESE office. The number of hours for the student will be determined on an individual basis. The teacher is responsible for developing the Individual Education Plan as outlined in the flow chart. Our responsibility is for the delivery of subjects that are required in the educational program NOT necessarily the elective subjects. Elective instruction should be correlated between the school and homebound teacher. Elective subjects that are required for graduation will be given consideration.* (*This does not mean that we will not provide instruction in elective subjects.) The guidance counselor must be an active participant in determination of the subjects to be covered. All Hospital[ized]/Homebound teachers must use the Hospital[ized]/Homebound Conference Form. It is the responsibility of all homebound teachers to meet with all of a student's classroom teachers and document how information will be transferred. After the conference a copy must be forwarded to the principal of the school. NEVER leave the school without obtaining a signature on the form from either the guidance counselor or principal. During the conference stress the fact that grades will improve because of one-on- one instruction. If they do not improve someone is not doing something correct[ly]. . . . 12. Assignments are to be returned on a weekly basis with communication reports going to the school along with a copy of the communication report forwarded to the Hospital[ized]/Homebound office. The "Hospital[ized]/Homebound Staff Responsibilities" section of the 2000-01 Manual provided as follows: Upon admission to the Hospital Homebound Program, each student will be assigned to a teacher. The teacher is responsible for: -Attend inservice and workshops as required. -Attend staffings at ESE office or home school as assigned. -Setting up appointments with guidance counselors, teachers and parents. -Completing necessary paperwork, including writing short-term objectives. Contacting home schools to determine courses/concerns as necessary. Act as liaison between subject area teachers and parents when needed; if a concern arises for a student in a particular class or subject area, the subject area teacher should first contact the parent. If the issue is not resolved, the Homebound teacher should be contacted for input. The specialist should be notified following the resolution by the subject area [teacher] and Homebound teacher. -Preparing and maintaining grade sheets. -Scheduling instructional time periods. -Keeping accurate attendance records. -Delivering and returning materials, textbooks, units, or tests. -Filling out FTE individual student schedules for FTE count. -Maintaining papers for school/parents to be mailed. -Administering state, local, and teacher developed test/assessments. -Completing Hospital[ized]/Homebound grade sheets. Conferring with student, parents, and school guidance counselors on course changes or adaptations. -Providing information to other subject area teachers about a student's medical problem, limitations, and education background. However, if student is in a hospital, all information is confidential. -Maintaining accurate weekly schedules and travel logs. Completing weekly Communications logs between Hospital[ized]/Homebound and regular education teacher. -In order for a teacher to claim pay for 1 (one) hour of pre-planning, it will be necessary to submit to us the Homebound Conference Form which shows actual attendance at school based meeting. -In order for a teacher to obtain pay for 1 (one) hour of post-planning, it will be necessary to sign off on Homebound dismissal with Janet Cooper. At the dismissal time, all paperwork must be submitted and at the close-out staffing it will be disseminated to the appropriate school. You have 24 hours after dismissal to have all paperwork turned in to the ESE Homebound Office. You must call and make an appointment with Janet Cooper. The "Guidelines [for] Hospitalized/Homebound Teachers" section of the 2000-01 Manual provided as follows: Welcome to the Hospitalized/Homebound Program of St. Lucie County. Your interest and willingness to help are appreciated, and we feel sure that you will enjoy the work you do with our students. You probably have many questions concerning this program, and we hope that these few guidelines will be of some help. Call the school counselor to schedule a meeting. Call the student's home and inform the parent/guardian of the meeting with the guidance counselor. It is best if the parent can meet with both of you. If they cannot, however, you can make an appointment with the parent to review the plan. Remind the parent or guardian that a responsible adult must be present at all times while you are in the home. This may be a relative or neighbor if the parents are unable to be there. It is recommended that an average of 3-5 hours per week be spent with elementary students, 4-8 hours per week with middle school students and 7-12 hours per week with high school students, but some situations may require more or less time. (Flexibility is the name of the game in this program.) In your initial conversation with the parent, you may find out whether the student has books and/or assignments and what he/she needs from school. Each time you visit the student, ask the adult who is there to sign your contracted teacher log. If the student is in the hospital, ask a nurse to sign it for you. Please follow the payroll schedule to assure proper payment for your services. You will be paid for actual student contact hours. Mileage is included in your stipend for the first ten (10) miles traveled on any visit to the student residence or place of instruction. We will try to assign students within a reasonable distance from your home. Please work with the students on regular school days, not on holidays or weekends. The School Board considers only those school days according to the official school calendar as appropriate teaching days. When you accept a student, you will be given a packet containing all forms and information that you will need. There will always be questions so please feel free to call. Our number at the ESE office is . . . . The 2000-01 Manual also contained the following "Hospitalized/Homebound Program Procedures for Completing Travel Forms": The following procedures have been established for completing travel forms: Contracted teachers are required to submit the travel form that coincides with the time sheet. Accounting has requested this requirement. Stipend teachers' travel can be accumulated and then submitted after the form is completed for the month. In the column "From Where - To Where" write from where you are leaving (ex: School Name or your home), then write the student's address (not name), next, where you returned to (ex: School Name or your home). You may write "home" because your address appears at the bottom of the form. As noted on the form "indicate clearly if round trip." You may submit trips to the student's school to pick up homework, meetings, etc. for the student. Indicate the mileage from point of departure to the destination, then point of return. In the column "Purpose" write the reason for the trip, such as tutor homebound student. If other than tutoring, please indicate the reason. When calculating mileage the following steps are necessary: Enter the total miles from your point of departure to the student's home then to your point of return. Write on the form under "Miles" the total miles for this round trip. Then, write the subtraction of 10 miles from the total. This will be the figure allowed for reimbursement. You must write round trip total per trip minus 10 miles for each day. If this is not indicated on your form that you subtracted 10 miles for each trip, then we will subtract 10 from the daily totals to calculate your reimbursement. At the bottom of the form, write the date you completed the form, your social security number, print your name and address, and be sure to sign. This form cannot be submitted without your signature and will be returned to you if omitted. If you have any question, please call Janet for further assistance at . . . . In addition, the 2000-01 Manual included copies of the following forms, among others: the Hospitalized/Homebound Conference Form, the Hospitalized/Homebound Program Record Weekly Communication Record, the H/H Service Log, and the Monthly Travel and Request for Reimbursement Form. On the top of the Hospitalized/Homebound Conference Form in the Manual was the following statement: The Hospital[ized]/Homebound Program is coordinating the education services for the student listed. To maintain parity with the quality education provided by the classroom teacher, the program will require a copy of course syllabi, appropriate textbooks, weekly assignments and evaluations. *If the Hospital[ized]/Homebound teacher is responsible for grading assignment and evaluations an answer key is required. The Guidance Department must determine if the existing course schedule is appropriate for Hospital[ized]/Homebound instruction. Appropriate modifications to course offering or content must be determined prior to plan implementation. The form had spaces for the student's name, address, school, grade, guidance counselor, and H/H teacher, the "date of meeting," the "subjects to be taught" by the H/H teacher, the signatures of the "classroom teachers" who would otherwise be teaching the student those subjects, and the signatures of the guidance counselor and the H/H teacher. There were also spaces to indicate, for each subject, whether assignments and examinations would be "transferred" by "PONY," the student's parent, or the H/H teacher and whether these assignments and examinations would be graded by the classroom teacher or the H/H teacher. The Hospitalized/Homebound Program Weekly Communication Record in the Manual had spaces for the H/H teacher to indicate the student's "academic average for the week by subject." The H/H Service Log in the Manual indicated on its face that it was a "record of hospitalized/homebound teacher services." It had spaces for the H/H teacher to indicate the "[d]ays(s) and time(s) of the week [the] student [in question] was served." In all caps and boldface type on the log was the reminder, "Parent/Guardian signature required daily," and there were spaces on the log for such signatures. The log also contained the following certification to be signed and dated by the H/H teacher: "I hereby certify that the above services were provided by me as indicated." Underneath the signature line for the H/H teacher were signature lines for the Program Specialist and the "administrator [giving] approval." The Monthly Travel and Request for Reimbursement Form in the Manual had four columns with the following headings, reading from left to right: "Date of Travel," "From Where - To Where (Indicate clearly if round trip)," "Purpose," and "Miles." On the bottom left hand corner of the form was the following "Note": Miles to and from school centers must agree with approved school mileage chart. Each date of travel must be reported separately. Respondent was among the H/H teachers who were trained and supervised by Ms. Washington during the 2000-01 school year.11 This was not the first year that she had taught in the Program.12 At all times that she served as an H/H teacher, Respondent was also under contract with the School Board to provide school-based instruction during the regular school day. Although she has been employed by the School Board since approximately 1981, she has not been a teacher for this entire period of time. From the commencement of her employment with the School Board until the 1994-95 school year, she held various noninstructional positions. During the 1994-95 school year, Respondent graduated from Nova Southeastern University with a degree in exceptional education. She obtained, and still holds, Florida certification in the areas of emotionally handicapped and severely emotionally disturbed. It has only been since the 1994-95 school year, when she taught a varying exceptionalities class at Parkway Elementary School, that Respondent has worked as a teacher for the School Board. At the beginning of the 2000-01 school year, Respondent taught at Westwood High School. In or around September 20, 2000, she was transferred to Woodland Academy, where she remained for the rest of the school year. Respondent returned to Westwood High School the next school year. S. S. is one of the students served by the Program. She is a sixteen-year-old girl who has Cystic Fibrosis. Because of her illness, S. S. "runs infections quite a bit" and often needs to be hospitalized for ten days to two weeks or more at a time. As a result, "she doesn't get much time home." J. S. is S. S.'s mother. J. S. "work[s] a tremendously demanding job" with long hours that often prevents her from being home before evening. Sometime after the beginning of the 2000-01 school year, in or around late September or early October of 2000, Respondent (who had already undergone the required annual training for H/H teachers) was assigned by Ms. Washington to be S. S.'s H/H teacher. The assignment continued until the end of the school year. During the 2000-01 school year, S. S. was a ninth grade student taking, among other subjects, English, algebra, biology and global studies. Her home school that year was Centennial High School. S. S. was hospitalized at St. Mary's Medical Center in West Palm Beach, Florida, on seven different occasions during the 2000-01 school year. The shortest of these hospital stays was ten days. The longest was 19 days. Before each of these hospitalizations, J. S. gave the School Board notice (by telephoning either Respondent or the School Board's Exceptional Student Education office) that S. S. would be going into the hospital. At no time during the 2000-01 school year did S. S. have access to a functioning computer (either at the hospital or at home) that she used for schoolwork.13 The School Board provided S. S. with a computer that Respondent tried to set up in S. S.'s home, but the computer "never worked." During the period that Respondent was S. S.'s H/H teacher (and S. S. was at home and not hospitalized), Respondent did not visit S. S. every school day; rather, she visited once or twice a week. J. S. was present for only a "few" of these visits. She was under the impression that she did not need to be there when Respondent visited inasmuch as S. S. had "hit high school age." The longest Respondent ever stayed with S. S. during a visit was one and half to two hours. There were only one or two visits of this length. They occurred "at the beginning" when Respondent was attempting to set up the computer in S. S.'s home. The other visits were "short" and, for the most part, involved Respondent "just dropping off work" for S. S. When S. S. completed the work that Respondent had dropped off for her, she gave it to her mother or her sister to give to Respondent. Respondent provided S. S. with no instruction during her visits with S. S. except for "a little bit" of instruction in algebra.14 Respondent submitted completed H/H Service Logs (using the form contained in the Manual) on which she knowingly made false representations, with the intent to defraud the School Board,15 concerning the "services [she] provided" S. S. She did so to obtain compensation to which she knew she was not entitled.16 On many of the occasions that Respondent claimed, on the logs, she had been with S. S. providing "services," she, in fact, had not provided the "services" claimed. Respondent made these false claims knowing that they were not true and anticipating that the School Board would rely upon them in determining the amount of pay she would receive. J. S. was an unwitting participant in Respondent's scheme. J. S. signed H/H Service Logs presented to her by Respondent after being told by Respondent that Respondent "had been coming" to visit S. S. when J. S. was not home and that J. S. needed to sign the logs to indicate that such visits had been made. J. S. took Respondent at her word about these alleged visits and followed Respondent's directions. Some of the H/H Service Logs that Respondent gave J. S. to sign had the dates and times of these alleged unsupervised visits already filled in. Others did not. The evidentiary record contains twelve H/H Service Logs (collectively covering the period from September 25, 2000 to May 25, 2001) that Respondent filled out and turned in during the time that she was S. S.'s H/H teacher. On each, Respondent "certif[ied]" (by her signature) that she had "served" S. S. on the dates and times indicated thereon. There is a signature purporting to be that of J. S. on the "Parent Signature" line to the right of each date of "service[]" entered on each log.17 With one exception (the log covering the period from April 23, 2001, to May 11, 2001), each log also bears what purports to be Ms. Washington's signature on the "Program Specialist" signature line directly underneath Respondent's "certif[ication]." On the first log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from September 25, 2000, to October 13, 2000: Monday, September 25, 2000, for an hour, from 8:30 to 9:3018; Tuesday, September 26, 2000, for two hours, from 7:30 to 9:30; Wednesday, September 27, 2000, for one hour, from 8:30 to 9:30; Thursday, September 28, 2000, for one hour, from 8:30 to 9:30; Friday, September 29, 2000, for three hours, from 6:30 to 9:30; Monday October 2, 2000, for two hours, from 9:00 to 11:00; Tuesday, October 3, 2000, for two hours, from 9:00 to 11:00; Wednesday, October 4, 2000, for two hours, from 9:00 to 11:00; Thursday, October 5, 2000, for three hours, from 8:00 to 11:00; Friday, October 6, 2000, for three hours, from 5:30 to 8:30; Tuesday, October 10, 2000, for three hours, from 6:00 to 9:00; Wednesday, October 11, 2000, for three hours, from 6:00 to 9:00; and Thursday, October 12, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that October 9, 2000, was Yom Kippur and that October 13, 2000, was an "inservice day." On the second log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from October 16, 2000, to November 3, 2000: Monday, October 16, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 17, 2000, for two hours, from 6:00 to 8:00; Wednesday, October 18, 2000, for two hours, from 6:00 to 8:00; Thursday, October 19, 2000, for two hours, from 6:00 to 8:00; Friday, October, 20, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 24, 2000, for two hours, from 6:00 to 8:00; Wednesday, October 25, 2000, for two hours, from 6:00 to 8:00; Thursday, October 26, 2000, for two hours, from 6:00 to 8:00; Friday, October 27, 2000, for two hours, from 6:00 to 8:00; Monday, October 30, 2000, for one hour, from 6:00 to 7:00; Tuesday, October 31, 2000, for two hours, from 6:00 to 8:00; Wednesday, November 1, 2000, for two hours from 6:00 to 8:00; Thursday, November 2, 2000, for two hours, from 6:00 to 8:00; and Friday, November 3, 2000, for one hour, from 6:00 to 7:00. On the third log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from November 6, 2000, to November 24, 2000: Monday, November 6, 2000, for three hours, from 6:00 to 9:00; and Tuesday, November 7, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days during the period. On the fourth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from November 27, 2000, to December 15, 2000: Wednesday, November 29, 2000, for three hours, from 6:00 to 9:00; Thursday, November 30, 2000, for three hours, from 6:00 to 9:00; Friday, December 1, 2000, for three hours, from 6:00 to 9:00; and Monday, December 4, 2000, for three hours, from 6:00 to 9:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days during the period. On the fifth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from January 3, 2001, to January 12, 2001: Wednesday, January 3, 2001, for two hours, from 6:00 to 8:00; Thursday, January 4, 2001, for two hours, from 6:00 to 8:00; Friday, January 5, 2001, for two hours, from 6:00 to 8:00; Monday, January 8, 2001, for two and a half hours, from 6:00 to 8:30; Tuesday, January 9, 2001, for two and a half hours, from 6:00 to 8:30; Wednesday, January 10, 2001, for two and a half hours, from 6:00 to 8:30; Thursday, January 11, 2001, for two and a half hours, from 6:00 to 8:30; and Friday, January 12, 2001, for two hours, from 6:00 to 8:00. On the sixth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from January 15, 2001, to February 2, 2001: Tuesday, January 16, 2001, for two hours, from 3:00 to 5:00; Wednesday, January 17, 2001, for two hours, from 3:00 to 5:00; Thursday, January 18, 2001, for two hours, from 3:00 to 5:00; Monday, January 22, 2001, for two hours, from 3:00 to 5:00; Tuesday, January 23, 2001, for two hours, from 3:00 to 5:00; Wednesday, January 24, 2001, for two hours, from 3:00 to 5:00; Thursday, January 25, 2001, for two hours, from 3:00 to 5:00; Friday, January 26, 2001, for two hours, from 3:00 to 5:00; Monday, January 29, 2001, for two hours, from 3:00 to 5:00; Tuesday, January 30, 2001, for two hours, from 3:00 to 5:00; and Wednesday, January 31, 2001, for two hours, from 3:00 to 5:00. It was noted on the log that S. S. was in the hospital on the remaining regular school days (February 1 and 2, 2001) during the period. On the seventh log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from February 5, 2001, to February 16, 2001: Wednesday, February 7, 2001, for three and half hours, from 3:00 to 6:30; Thursday, February 8, 2001, for three and half hours, from 3:00 to 6:30; Friday, February 9, 2001, for four hours, from 3:00 to 7:00; Monday February 12, 2001, for one hour, from 3:00 to 4:00; Tuesday, February 13, 2001, for three and half hours, from 3:00 to 6:30; Wednesday, February 14, 2001, for three and half hours, from 3:00 to 6:30; Thursday, February 15, 2001, for three and half hours, from 3:00 to 6:30; and February 16, 2001, for a half hour, from 3:00 to 3:30. It was noted on the log that S. S. was in the hospital on the remaining regular school days (February 5 and 6, 2001) during the period. On the eighth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from February 19, 2001, to March 2, 2001: Monday, February 19, 2001, for two hours, from 3:00 to 5:00; Tuesday, February 20, 2001, for two hours, from 3:00 to 5:00; Wednesday, February 21, 2001, for two hours, from 3:00 to 5:00; Thursday, February 22, 2001, for two hours, from 3:00 to 5:00; Friday, February 23, 2001, for one hour, from 3:00 to 4:00; Monday, February 26, 2001, for two hours, from 3:00 to 5:00; Tuesday, February 27, 2001, for two hours, from 3:00 to 5:00; Wednesday, February 28, 2001, for two hours, from 3:00 to 5:00; Thursday, March 1, 2001, for two hours, from 3:00 to 5:00; and Friday, March 2, 2001, for one hour, from 3:00 to 4:00. On the ninth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from March 5, 2001, to March 16, 2001: Monday, March 5, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, March 6, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, March 7, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, March 8, 2001, for an hour and a half, from 3:00 to 4:30; and Friday, March 9, 2001, for an hour, from 3:00 to 4:00. It was noted on the log that S. S. was not provided any "services" the week of March 12, 2001, and that she was "hospitalized" for the last three days of that week. On the tenth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from April 2, 2001, to April 20, 2001: Monday, April 2, 2001, for two hours, from 3:00 to 5:00; Tuesday, April 3, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, April 4, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, April 5, 2001, for an hour and a half, from 3:00 to 4:30; Friday, April 6, 2001, for two hours, from 3:00 to 5:00; Monday, April 16, 2001, for two and a half hours, from 2:30 to 5:00; Tuesday, April 17, 2001, for two hours, from 2:30 to 4:30; Wednesday, April 18, 2001, for two hours, from 2:30 to 4:30; Thursday, April 19, 2001, for two hours, from 2:30 to 4:30; and Friday, April 20, 2001, for two and a half hours, from 2:30 to 5:00. It was noted on the log that the week of April 9, 2001, was "spring break." On the eleventh log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from April 23, 2001, to May 11, 2001: Monday, April 23, 2001, for two hours, from 3:00 to 5:00; Tuesday, April 24, 2001, for two hours, from 3:00 to 5:00; Wednesday, April 25, 2001, for two hours, from 3:00 to 5:00; Thursday, April 26, 2001, for two hours, from 3:00 to 5:00; Friday, April 27, 2001, for two hours, from 3:00 to 5:00; Monday, April 30, 2001, for two hours, from 3:00 to 5:00; Tuesday, May 1, 2001, for two hours, from 3:00 to 5:00; Monday, May 7, 2001, for two hours, from 3:00 to 5:00; Tuesday, May 8, 2001, for two hours, from 3:00 to 5:00; Wednesday, May 9, 2001, for two hours, from 3:00 to 5:00; Thursday, May 10, 2001, for two hours, from 3:00 to 5:00; and Friday, May 11, 2001, for two hours, from 3:00 to 5:00. It was noted on the log that S. S. was "hospitalized" on the remaining regular school days (May 2, 3, and 4, 2001) during the period. On the twelfth log she submitted, Respondent "certif[ied]" that she "served" S. S. on the following dates and times during the period from May 14, 2001, to May 25, 2001: Monday, May 14, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, May 15, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, May 16, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, May 17, 2001, for an hour and a half, from 3:00 to 4:30; Friday, May 18, 2001, for an hour and a half, from 3:00 to 4:30; Monday, May 21, 2001, for an hour and a half, from 3:00 to 4:30; Tuesday, May 22, 2001, for an hour and a half, from 3:00 to 4:30; Wednesday, May 23, 2001, for an hour and a half, from 3:00 to 4:30; Thursday, May 24, 2001, for an hour and a half, from 3:00 to 4:30; and Friday, May 25, 2001, for an hour and a half, from 3:00 to 4:30. On an area of the log where there were no printed words or lines was the following notation: "One hour planning." No date or times were given, nor was there any signature next to this notation.19 The evidentiary record also contains four Monthly Travel and Request for Reimbursement Forms (Travel Reimbursement Forms) that Respondent filled out and turned in during the time that she was S. S.'s H/H teacher.20 The first of these Travel Reimbursement Forms covered the period from September 25, 2000, to October 13, 2000, the same period covered by the first service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back (a round trip of 33.5 miles) on each of the days that, according to the first service log, she "served" S. S.21 No other travel was reflected on the form. The second of these Travel Reimbursement Forms covered the period from January 15, 2001, to February 9, 2001. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the sixth service log, she represented she "served" S. S. She further claimed, on this Travel Reimbursement Form, that she made the same round trip on February 7, 8, and 9, 2001 (days that, on the seventh service log, she represented she "served" S. S). No other travel was reflected on the form. The third of these Travel Reimbursement Forms covered the period from February 19, 2001, to March 2, 2001, the same period covered by the eighth service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the eighth service log, she represented she "served" S. S. No other travel was reflected on the form. The fourth and last of these Travel Reimbursement Forms covered the period from March 5, 2001, to March 16, 2001, the same period covered by the ninth service log. On this Travel Reimbursement Form, Respondent claimed that she traveled from her home to S. S.'s home and back on each of the days that, on the ninth service log, she represented she "served" S. S. No other travel was reflected on the form. The evidentiary record also contains one H/H Service Log on which Ms. Washington "certif[ied]" that she "served" S. S. (as S. S.'s H/H teacher) on September 18, 2000, for four hours, from 5:00 to 9:0022; September 20, 2000, for four hours, from 5:00 to 9:00; September 22, 2000, for four hours, from 5:00 to 9:00; September 24, 2000,23 for four hours, from 5:00 to 9:00; September 25, 2000, for four hours, from 5:00 to 9:00; and September 26, 2000, for four hours, from 5:00 to 9:00.24 There is no "Parent Signature" to the right of either the September 18, 21, 24, or 26, 2000, entry. There is a signature purporting to be that of J. S. on the "Parent Signature" line to the right of each of the other alleged dates of "service[]." There is a notation on the log (together with an arrow) indicating that S. S. was "[r]e-assigned [to] Celestine Baker" on the Thursday of the school week beginning Monday, September 25, 2000 (that is, on September 28, 2000).25 The administrator who signed the log was someone other than Ms. Slaga or Ms. Akre. It was not until after the end of the school year that it "c[a]me to [Ms. Slaga's] attention that Ms. Washington had some service logs[26] related to [S. S.]." Ms. Slaga found it "very unusual to see" an H/H Service Log submitted by a Program Specialist. At the suggestion of Susan Ranew, the School Board's Director of Personnel, Ms. Slaga visited J. S. and showed her the service logs in question. J. S. told Ms. Slaga, after examining the logs, that "no services" were provided on some of the alleged dates of "service[]," including dates on which S. S. "was in the hospital in West Palm Beach." J. S. added that not all of the signatures on the "Parent Signature" lines on the logs were hers. When Ms. Slaga returned from her visit with J. S., she "pulled out all of [S. S.'s] logs," including those submitted by Respondent, and reviewed them. Ms. Slaga noticed that "some of the dates that were on [Respondent's] log were the same dates that Ms. Washington had [claimed] that she [had] provided services to [S. S.]."27 These were dates on which, according to what J. S. "had already shared" with Ms. Slaga, S. S. "was in the hospital in West Palm [Beach]." After obtaining information from St. Mary's Medical Center concerning S. S.'s hospitalizations, Ms. Slaga re- examined the service logs and confirmed "that there were days of service indicated by both Ms. Washington and [Respondent] that [S. S] had been in the hospital." Ms. Slaga "turned the information over to the [School Board's] Personnel [Office]." Russell Anderson, the School Board's Assistant Superintendent for Human Resources, after consulting with the School Board's Superintendent of Schools, called in the law firm of Richeson and Associates to engage in "formal fact finding." During the "formal fact finding," Respondent was provided the opportunity to give "a statement of her side of the story." Through her attorney, she declined to give such a statement.28 At some point in time, Respondent telephoned S. S. and told S. S., if S. S. "were contacted by the School [Board] regarding [Respondent's] services," to lie and say that Respondent "came every day."29 Ms. Washington, unlike Respondent, did give a statement, which "was eventually turned into an affidavit." In her affidavit (which was received into evidence as Respondent's Exhibit 3, over the School Board's objection), after discussing the Program and procedures relating to the completion and approval of H/H Service Logs and Travel Reimbursement Forms, Ms. Washington went on to describe those "activities . . . related to [S. S.'s] involvement in the hospitalized/homebound program" in which she claimed she engaged on the dates of "service[]" indicated on her "service logs for the time periods of 8/22/00-8/30/00; 8/31/00-9/13/00; and 9/18/00-9/27/00." Some of the "activities" she described did not involve "actual student contact," such as "visiting different locations in St. Lucie and Martin Counties . . . in attempts to acquire a needed adapter for [an] Apple laptop computer so that [she] could provide the laptop to S. S." and attending "meetings at Port St. Lucie High School [S. S.'s home school at the time] concerning providing hospitalized/homebound services to [S. S.]." Ms. Washington further stated that, "[o]n 8/30/00, [she] went the [S. S.'s] home and installed a desktop computer and password" and that "[t]his desktop computer had the computer program 'Plato' installed on it so that [S. S.] could utilize computerized instruction." Ms. Washington added that, "since [she] had Plato installed on [her] laptop, [she] was able to monitor [S. S.] while [S. S.] worked on the desktop computer." Ms. Washington went on to claim that she did such "monitor[ing]" on the following dates: August 31, 2000; September 2, 2000; September 6, 2000; September 7, 2000; September 8, 2000; September 11, 2000; September 12, 2000; September 13, 2000; September 18, 2000; September 20, 2000; September 22, 2000; September 24, 2000; September 25, 2000; and September 26, 2000. These representations were false. There was no "computerized instruction." There was no "monitoring." Indeed, there was not even a "desktop computer" set up in S. S.'s home. These were all things that Ms. Washington had made up.30 Having described in the preceding portions of her affidavit the non-"actual student contact" activities in which she claimed to have engaged on the dates of "service[]" reported on the service logs she submitted, Ms. Washington made the following self-serving statements in paragraphs 21, 22 and 23 of the affidavit:31 I wrote the training manual for teachers in relation to the ESE Hospitalized/Homebound Program. Although page 9 of this training manual (#6) states "you will be paid for actual student contact hours" this does not prevent a hospitalized/homebound teacher or program specialist from submitting time on their service log for any activity related to a student in the hospitalized/homebound program. The Training Manual does not address all possible scenarios and is only intended to be a guide for teachers. The reference on page 9 of this training manual, which states "you will be paid for actual student contact hours" refers only to teachers/program specialists being reimbursed for mileage. I believe that it is proper for a teacher or program specialist to record on their service log any time that the teacher or program specialist spends performing any activity related to a student in the hospitalized/homebound program if that activity is performed outside the teacher's or program specialist's normal workday. Page 8 of this training manual provides that in order for teachers and program specialists to claim payment for 1 hour of pre-planning, actual attendance at a school based meeting[] is required. However, I believe that a teacher or program specialist is allowed to perform this pre-planning at [his or her] home, and that any time that the teacher or program specialist spends performing any activity at a school (outside [his or her] normal work hours) in relation to a student in the hospitalized/homebound program may be recorded on the service log. I performed the pre-planning for [S. S.] while I was in my office, during normal working hours. By mid-October of 2001, Ms. Washington had been suspended from her Program Specialist position and Ms. Jones had been assigned to take her place. While Ms. Jones was "in training," Mr. Tomlinson was asked to review and sign the completed H/H Service Logs submitted by the H/H teachers. Among the completed service logs Mr. Tomlinson reviewed was one submitted by Respondent, on which Respondent "certif[ied]" (by her signature) that she "served" J. A., a hospitalized/homebound student to whom she had been assigned, on the following dates and times during the period from October 1, 2001, to October 16, 2001: Monday, October 1, 2001, for two hours, from 3:15 to 5:15; Tuesday, October 2, 2001, for two and a half hours, from 3:15 to 5:45; Wednesday, October 3, 2001, for two and a half hours, from 3:15 to 5:45; Thursday, October 4, 2001, for two and a half hours, from 3:15 to 5:45; Friday, October 5, 2001, for two and a half hours, from 3:15 to 5:45; Monday, October 8, 2001, for two and a half hours, from 3:15 to 5:45; Tuesday, October 9, 2001, for two and a half hours, from 3:15 to 5:45; Wednesday, October 10, 2001, for two and a half hours, from 3:15 to 5:45; Thursday, October 11, 2001, for two and a half hours, from 3:15 to 5:45; Friday, October 12, 2001, for two hours, from 3:15 to 5:15; Monday, October 15, 2001, for two hours, from 3:15 to 5:15; and Tuesday, October 16, 2001, for two and a half hours, from 3:15 to 5:45. When Mr. Tomlinson received the log, there was a signature purporting to be that of J. A.'s mother on the "Parent Signature" line to the right of each date of "service[]" entered on the log.32 These signatures were forgeries (as evidenced by the misspelling, in each case, of J. A.'s mother's last name33). They had been placed on the log by Respondent, who did so because she knew that there needed to be a signature on the "Parent Signature" line next to each date of "service[]" in order for her to get paid for the hours of "service[]" she reported having provided on that date.34 Respondent was subsequently, like Ms. Washington, suspended without pay and recommended for termination. No showing has been made that, in being suspended without pay and recommended for termination, Respondent was treated differently and less favorably than any similarly situated teacher suspected by the School Board of having deceptively falsified documents for his or her own personal gain;35 nor has it been shown that she has been targeted for prosecution for any invidious or unlawful reason, such as her race.36
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a professional service contract teacher with the School Board for having engaged in the deceptive and fraudulent conduct described above. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2002.
Findings Of Fact Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent is the holder of a teacher's certificate, number 617425, for the area of social studies. Such certificate is valid through June 30, 1996. During the 1990-91 school year, Respondent was employed by the Orange County School District as a teacher at Union Park Middle School (Union Park). All allegations material to the case against Respondent occurred during his employment at Union Park and involved female students who were either enrolled in his class or members of the social studies club Respondent sponsored. During 1990-91 school year, Respondent placed telephone calls to female students. The purpose of such calls was to convey school-related or social studies club information to the student; however, Respondent frequently allowed the subject matter of the telephone conversations to extend to private, non- school topics. These private topics included discussions regarding who liked who for boyfriends and girlfriends as well as the personal appearance and conduct of various students. Additionally, the length of time involved in such conversations varied from a matter of minutes to almost an hour in length. Also during the school year, Respondent participated in the completion of a "slam book." A "slam book" is an unauthorized school activity in which students are not to participate. In general, a "slam book" is a book wherein students make comments about others. In many instances such comments may be unflattering or uncomplimentary. If discovered, teachers generally confiscate such books and admonish students regarding them. In Respondent's case, when he was asked to sign a "slam book" belonging to Karen McCue, Respondent completed many of the headings with personal comments about others known to the students completing the book. The completion of the book by a student, much less a teacher, was against school policy. On one occasion, Respondent wrote on a student's hand by drawing an eyeball, a heart, followed by the letter U. The student interpreted, and Respondent intended, the message to mean "I love you." As a result, the student became self-conscious and went to the restroom to wash the message off. While Respondent did not intend the message to embarrass the student, such action, nevertheless, made her uncomfortable. On several occasions, Respondent made female students uncomfortable by touching them. None of the touches were intended or interpreted by the students as sexual in nature. None of the touches involved inappropriate parts of the body. All such touches occurred in full view of the class or others. None of the touches made the students uncomfortable at the time they were made; only later, in retrospect, did the students feel uncomfortable. Such touches included playing with a female student's hair, holding a female student's hand, or a side-to-side hug. After Respondent confiscated a Gloria Estefan concert program book from one of the female student leaders, the allegations of impropriety at issue in these proceedings were raised. Prior to that incident, Respondent had enjoyed considerable popularity with the students in his classes and the social studies club. Rumors of improper touchings, not substantiated or alleged in this case, were rampant. Understandably, parent concern and administrator involvement as a result of the complaints followed. On March 28, 1991, the Orange County School District issued a letter of reprimand to the Respondent based upon the alleged inappropriate verbal and written comments to students. Additionally, at the conclusion of the school year, Respondent's teaching contract was not renewed for the 1991-92 school year. Because he engaged in behaviors that interfered with the student/teacher relationship, Respondent's effectiveness as a teacher was substantially reduced. Respondent failed to maintain a proper, professional distance between himself, as the teacher, and the female students. By engaging in personal telephone conversations and the "slam book," Respondent failed to establish his role as the disciplinarian and authority figure inherent in being their teacher. Respondent enjoyed a good teaching reputation among his fellow teachers and received favorable recommendations and evaluations from his principal. Respondent did not commit any act reflecting gross immorality or an act involving moral turpitude. Respondent did not commit any act that resulted in a failure to make reasonable effort to protect students from conditions harmful to learning or to health or safety. Respondent did not intentionally expose students to unnecessary embarrassment or disparagement. Respondent did not intentionally exploit his professional relationship with students for personal gain or advantage.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission enter a final order reprimanding the Respondent for the conduct set forth above. DONE and ENTERED this 20th day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1992. APPENDIX TO CASE NO. 92-0175 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 5 are accepted. With regard to paragraph 6, the last sentence is accepted; otherwise rejected as argumentative or contrary to the weight of credible evidence. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the weight of credible evidence or argument. The first sentence of paragraph 9 is accepted; the remainder is rejected as recitation of testimony or unnecessary. It is accepted that a slam book is an inappropriate activity for students as well as teachers. Paragraph 10 is accepted. Paragraph 11 is rejected as recitation of testimony, irrelevant or unnecessary to the resolution of the issues of this case. Paragraph 12 is rejected as recitation of testimony and/or argument. Paragraph 13 is rejected as repetitive, irrelevant, or contrary to the weight of credible evidence (except as addressed in the foregoing findings of fact). Paragraph 14 is rejected as repetitive and irrelevant. It is accepted that Respondent's informal conversations with students did not maintain an appropriate level of professional distance; otherwise rejected as indicated. Paragraph 15 is rejected as contrary to the weight of evidence or irrelevant to the extent not addressed in the findings of fact. Paragraph 16 is rejected as repetitive and irrelevant. Paragraph 17 is rejected as recitation of testimony, irrelevant, or unnecessary. To the extent not addressed in the findings of fact, paragraphs 18 through 32 are rejected as unnecessary, irrelevant, contrary to the weight of the evidence, or recitation of testimony. For the most part, the allegations suggested by the findings proposed constitute much ado about little. Respondent clearly did not maintain an appropriate distance from students; however, his conduct did not rise to a level to reflect a lack of moral character or be grossly immoral. In essence, Respondent's error was to try to be the student's friend more than their teacher. As a result, his role as their teacher was compromised. Paragraph 33 is accepted with the deletion of the word "embarrassment." Respondent experienced a breakdown in the student/teacher relationship, he did not intend to embarrass the students. The first sentence of paragraph 34 is accepted; otherwise rejected as contrary to the weight of the evidence. The first sentence of paragraph 35 is accepted; the remainder rejected as contrary to the weight of the evidence. Paragraph 36 is rejected as irrelevant. With regard to paragraph 37 it is accepted that Respondent's behaviors seriously undermined his effectiveness at Union Park; otherwise rejected as contrary to the weight of the evidence. Further, it has not been shown that such behaviors were widely known in the community or that his effectiveness in another location would be compromised. Clearly, the incidents of this case were fairly minor, isolated, and impacted but one school. Since the Respondent has been appropriately disciplined, such prior conduct should not prohibit the Respondent from teaching in another location where his effectiveness has not been questioned. It might be concluded that Respondent has learned from the errors of his past. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent not accepted and addressed by the findings of fact above, Respondent's proposed findings of fact are rejected as irrelevant, repetitive, contrary to the weight of the evidence, argumentative, or unnecessary. Respondent was well-liked and considered a "good teacher" by many of his students. In that his principal did not know of Respondent's informal relationships with students, he considered Respondent a "good teacher." Respondent's ability to maintain an appropriate professional distance from his students is the only violation established by this record. COPIES FURNISHED: John F. Gilroy, Esquire Attorney Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Joseph Egan, Jr. P.O. Box 2231 Orlando, Florida 32802 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400
The Issue Whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Madison County School District is a school district which consists of eight schools, serving approximately 2600 students. It employs approximately 400 people. Since 2012, Doug Brown has been the Superintendent of Schools for Madison County. Willie Williams is Respondent’s Chief Operations Officer. As part of his duties in that position, he serves as the head of the Human Resources Department, and is involved in the screening of applicants for positions within the district. He also serves as the human resources equity officer with responsibility for ensuring that the district’s procedures are followed in employment interviews and that all interview questions are asked in the same order and manner for all employment candidates. As an employer, Respondent established standard hiring procedures which included procedures for the advertising, screening, and interviewing for all open positions within the district. As part of such procedures, all applications for open positions with Respondent are screened by a screening committee prior to any interview by the Respondent. During screening, the committee reviews every application for completeness and for compliance with the requisite experience and certifications required for that position. Only those applicants who were determined by the screening committee to possess the requisite experience and certification and whose applications are determined to be complete are granted an interview with Respondent. Respondent also had a policy which prohibited retaliation and discrimination on the basis of gender. The policy provided a procedure for a complaint to be made by any person who believed they were a victim of retaliation or discrimination. Petitioner, who is male, is a former employee of Respondent. During his prior employment with Respondent, Petitioner was employed in a variety of positions until June 2012, when his annual contract expired and was not renewed. Following his non- renewal, Petitioner filed a Complaint of Employment Discrimination with FCHR, wherein he claimed race discrimination and retaliation. FCHR investigated Petitioner’s complaint and, on February 15, 2013, issued a Notice of Determination finding no cause to believe that an unlawful employment practice had occurred. Petitioner took no further action with regard to this complaint and FCHR’s determination became final. In July of 2013, Respondent had a vacancy for a Dean of Students/Lead Teacher ESE position. Pursuant to its collective bargaining agreement, Respondent first advertised the position internally for three days to current district employees for whom the open position would be a lateral transfer. Respondent did not receive any internal applications. Accordingly, Respondent subsequently advertised the Dean of Students/Lead Teacher ESE position to the public. The required qualifications for the Dean of Students/Lead Teacher ESE position were: Bachelors Degree or higher from an accredited educational institution. Certified in an education field. Minimum of three (3) years teaching experience. Applicant must be certified in ESE. Respondent required that applicants for the Dean of Students/Lead Teacher ESE position hold the general exceptional student education (ESE) certification that is currently offered by the Florida Department of Education. Respondent did not accept any grandfathered special education certifications other than the full ESE certification for this position. There was no evidence that this requirement was discriminatory or retaliatory toward Petitioner.2/ Around this same time, Respondent also had openings for other Dean of Students positions. Unlike the other Dean of Students positions available at the time, the Dean of Students/Lead Teacher ESE position was a hybrid position which would fulfill both the role of Dean of Students, as well as that of ESE teacher. As a result, the Dean of Students/Lead Teacher ESE position for which Petitioner applied required ESE certification while other Dean of Students positions did not. Petitioner, along with 22 other individuals, applied for the Dean of Students/Lead Teacher ESE position. The applicants for the Dean of Students/Lead Teacher ESE position were approximately half male and half female. On his application, Petitioner reflected that he held a varying exceptionalities certification in special education. He also held certification in the areas of driver’s education, law enforcement, mental retardation, and secondary school principal. The applications for the Dean of Students/Lead Teacher ESE position were screened in compliance with Respondent’s established procedures. During the screening committee’s review, the screening committee verified Petitioner’s certification coverage with the Florida Department of Education. The Department of Education confirmed that Petitioner possessed certification in the areas of mental retardation and varying exceptionalities, but did not have the general ESE certification that Respondent required. Based upon Petitioner’s application and the certification report obtained from the Florida Department of Education, the screening committee members agreed that Petitioner did not meet the required qualifications for the Dean of Students/Lead Teacher ESE position and screened him out of the interview process for such position. In fact, several applicants, both male and female, were screened out of the interview process for the Dean of Students/Lead Teacher ESE position due to not being qualified. The only applicants who passed the screening process and were granted interviews for the Dean of Students/Lead Teacher ESE position were those applicants who possessed the full ESE certification. There was no evidence that Respondent’s or the screening committee’s actions in processing these applications were discriminatory or retaliatory against Petitioner. The applicant who was ultimately selected for the Dean of Students/Lead Teacher ESE position was a female who was a current school board employee at the time of her application and who possessed the full ESE certification that Respondent required for the position. After learning that he had been screened out of the interview process for the Dean of Students/Lead Teacher ESE position, Petitioner met with Superintendent Brown and inquired as to why he was screened out of the interview process for such position. The Superintendent indicated to Petitioner that if he was qualified for the position he should have been interviewed and advised Petitioner he would look into the matter. Following such meeting, Superintendent Brown conferred with Willie Williams regarding the screening and interview process for the position at issue. The chief operating officer informed Superintendent Brown that Petitioner did not possess the required full ESE certification and that he was therefore not qualified for the position. After receiving this information, Superintendent Brown concurred that Petitioner was not qualified for the Dean of Students/Lead Teacher ESE position and took no further action in relation to the issue. In July 2013, Petitioner applied for a Dean of Students position with Respondent. This position did not require ESE certification. Eighteen individuals applied for the position. The applications for this Dean of Students position were also screened in compliance with Respondent’s established procedures. Petitioner was determined to be qualified for this position by the screening committee and received an interview. Petitioner, however, was not recommended for the position and the position was ultimately filled by an African American male. Subsequently, Petitioner applied for an open driver’s education position with Respondent for the summer of 2014. This position did not require ESE certification. Likewise, the applications for the driver’s education position were screened in compliance with Respondent’s established procedures. Petitioner was deemed qualified for this position by the screening committee and received an interview. The interview committee recommended Petitioner to Superintendent Brown for this position and Superintendent Brown subsequently presented that recommendation to the School Board. The School Board approved the Superintendent’s recommendation and Petitioner was hired for the position. Petitioner also applied for an Assistant Principal position with Respondent in July 2014. This position did not require ESE certification. The applications for the Assistant Principal position were screened in compliance with Respondent’s established procedures. Petitioner was determined to be qualified for this position by the screening committee and was offered an interview. Petitioner, however, did not respond to Respondent’s attempts to schedule that interview and thus was not interviewed for the position. Ultimately, Petitioner failed to present any evidence to show that he was, in fact, qualified for the Dean of Students/Lead Teacher ESE position or that he was screened out of the interviews for such position for any reason other than his failure to meet the required qualifications. Based on this lack of evidence, the Petition for Relief should be dismissed. Finally, in his Employment Complaint of Discrimination and Petition for Relief, Petitioner alleged that Respondent provided “false and defaming references as further acts of retaliation” and “a negative derogatory reference letter.” However, Petitioner presented no evidence in support of these allegations. To the contrary, the evidence showed that at some point in time, Petitioner requested that Superintendent Brown write a reference letter for Petitioner. Following that request, Superintendent Brown wrote a letter for Petitioner to provide to potential employers which recommended Petitioner for employment and stated that Petitioner had not had any disciplinary issues with Respondent. Given Petitioner’s failure to present any evidence to support his allegations of retaliation, the Petition for Relief should be dismissed
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Rights enter a Final Order finding that Respondent did not discriminate or retaliate against Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of November, 2014, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 18th day of November, 2014.
The Issue Whether Respondent, Paul Parisi, committed the violations charged in the Administrative Complaint of the Orange County School Board (School Board) and, if so, whether just cause exists to terminate Respondent's annual contract of employment as a teacher.
Findings Of Fact Respondent was a teacher at Ocoee High School in Ocoee, Florida, for the 2006-2007 school year. Respondent is 42 years old. J.L. was a female, eleventh grade student at Ocoee High School and 17 years old at the time of the events which are the subject of this case. After obtaining a master's degree in education from the University of West Florida in 2004, Respondent was employed as a fourth grade teacher for one semester at Kissimmee Charter Academy in Osceola County and, then, as a fifth grade teacher for one year at Catalina Elementary School in Orange County. In 2006, Respondent was hired as a language arts teacher at Ocoee High School. One of the courses he was assigned to teach was a one-semester ACT/SAT Preparatory Course designed to prepare students for taking the Academic College Test and Scholastic Achievement Test for admission to a college or university. J.L. had generally performed poorly in high school, had a grade point average less than 2.0, and needed to significantly improve her grades to graduate. She was particularly weak in math. In the 2006-2007 school year, she was attending night classes after the regular school day to obtain course credits for classes she had failed. The 2006-2007 school year at Ocoee High School started on or about August 7, 2006. J.L was enrolled in Respondent's ACT/SAT Preparatory Course, along with about 15 other students. The Course was scheduled for every other school day and was held during the last period of the school day. Math is a prominent part of the course. On August 31, 2006, J.L. went to see Mr. Rigling, a guidance counselor at Ocoee High School. She told Mr. Rigling that she wanted to be transferred out of Mr. Parisi's class. She did not immediately tell Mr. Rigling the reason she wanted out of the class. Generally, students are allowed to drop and add classes within the first two weeks of the school year, but not thereafter. Students are not permitted to drop classes after the second week except in exceptional circumstances. When J.L. told Mr. Rigling that she wanted to drop Mr. Parisi's class, Mr. Rigling told J.L. that she could not do so without a "substantial" reason. It was then that J.L. told Mr. Rigling that she felt "uncomfortable" in Respondent's class. Mr. Rigling described J.L. as "tense" and "reluctant" to explain to him why she felt uncomfortable in Respondent's class. She eventually showed Mr. Rigling a greeting card she had received from Respondent and told Mr. Rigling about two conversations she had with Respondent that caused her to feel uncomfortable. These allegations will be discussed in detail below. Mr. Rigling asked J.L. to wait in his office and then informed Laura Beusse, an assistant principal, of J.L.'s accusations against Respondent. Mr. Rigling and Ms. Beusse contacted the School Board's employee relations department, which has exclusive authority to investigate allegations of sexual abuse or harassment. Mr. Rigling then asked J.L. to fill out a witness statement form. In her witness statement prepared on August 31, 2006, J.L. stated: On Tuesday, August 29th, after class, I received a "friendly" card from my SAT/ACT prep teacher. I didn't think to [sic] much of the gesture because Mr. Parisi is a nice teacher. To bring things back; I first had small talk with Mr. parisi [sic] on August 25th. The small talk consisted of my past and how far I had come and changed my life. I do not recall why our conversing went from simple to deep or how it did, but the content which first made me unsure, was when I had mentioned that my parents allowed my boyfriend to live with us, and Mr. Parisi bluntly said "so you were having sex at 15." I answered him, and told him yes and gave him my own Email address so that he could look me up on My Space. I did not think anything of it at first; then on Tuesday 8/29 I had stayed after class, because I had night school at three o'clock, so I stayed in class and talked to Mr. Parisi in our classroom alone. The entire conversation was about mostly my past expirences [sic] and life in general. For some reason it seemed that the conversation continued to return to my sexual past: The question he asked me that most made me uncomfortable was him asking me, "What my favorite position was, as in term [sic] of having sex. In the card he gave me his personal email first and then his work email. Also he signed it with your friend. He did say that he asked such questions because he thought I was very interesting, But I felt as if we were on an ? informal date or something . . . trying to find out things about each other. He also kept mentioning that I was pretty. When Mr. Parisi and I had our first chat and I had mentioned my ex-boyfriend and how he was living with me, and then Mr. Parisi assumed that I had been sexually active, he acted very interested in that particular subject. Mr. Rigling completed an OCPS Management Directive A-4 Reporting Form on August 31, 2006, the purpose of which was to independently recount what he had been told by J.L. Mr. Rigling's written statement was as follows: On 8/31 at approximately 10:20 a.m., in room 620 Officer Grogran asked that I speak with [J.L.]. [J.L.] and I went into my office and discussed a problem that took place after school. [J.L.] said on 8/25 she had begun to speak with Mr. Parisi about some problems she had in her past. She discussed some concerns with her boyfriend as well as regarding sex. Mr. Parisi discussed in a general way the risks of having sex at an early age. [J.L.] told me she felt uncomfortable during the discussion. On 8/29 while waiting for night school [J.L.] was in Mr. Parisi's class. Mr. Parisi gave her a card (enclosed). They continued a general conversation about school and life. [J.L.] reports that the teacher repeatedly try [sic] to steer the conversation toward her past and present boyfriend. Earlier [J.L.] had spoken with Mr. Parisi about feeling pressured by her ex boyfriend to have a threesome. Mr. Parisi told [J.L.] that she is very interesting and that he was intrigued by her. [J.L.] stated she felt very uncomfortable. [J.L.] reports he then asked her what is your favorite position. [J.L.] stated she did not answer and tried to redirect the conversation to a nonsexual one. [J.L.] said that Mr. Parisi told her how pretty she was. He [sic] [J.L.] reports that he said this more than once and she felt uncomfortable. The greeting card referred to in these two statements had a cover depicting "Historic Route 66" and, inside, Respondent wrote the following: Hello [J.L.] I am grateful to have met such a wonderful person as you along the road that criss- crosses [sic] life. I hope that where ever [sic] our roads take us that we are better people for having met and can keep in touch. [Respondent then lists both his private and school email addresses.] You are a pleasure to have in class and I enjoy your smile, enthusiasm, optimism, and contributions of intellect. Keep on being the best "[J.L.]" that you can be. Your Friend Mr. Parisi Later the same day, August 31, 2006, the principal of Ocoee High School came to Mr. Parisi's classroom and directed that he immediately vacate the school campus and go to the employee relations department. He was not told why. Respondent returned to the campus only once thereafter, to obtain his personal items. Discrepancies in the Two Written Statements There are two prominent discrepancies in the written statements of J.L. and Mr. Rigling. First, J.L. suggests that the sexual content of the conversation with Respondent on August 25 was initiated by Respondent in response to her telling him that her parents allowed her boyfriend to live with them. However, Mr. Rigling indicates that J.L. initiated the discussion of sexual matters. Second, Mr. Rigling reports that J.L. told Respondent in their August 29 conversation about being pressured by her boyfriend to have a "threesome," but J.L. did not mention that in her own statement. Based on the more persuasive evidence in the record, it is found that Mr. Rigling's account is the more accurate account. The August 25 Conversation The central elements of the August 25 conversation between J.L. and Respondent, according to the written statements of J.L. and Mr. Rigling, are as follows: J.L. initiated the conversation. J.L. initiated the sexual content of the conversation. Respondent discussed the problem of having sex at an early age. J.L. felt uncomfortable. In her written statement, J.L. indicated that her discomfort was the result of Respondent's blunt statement, "So you were having sex at 15." It is inferred that J.L. meant to convey that she thought this was a presumptive or provocative comment. Mr. Rigling's statement does not contain an explanation for J.L.'s discomfort on August 25, unless it is inferred that Respondent's comments about "the risks of having sex at an early age" caused J.L. to feel uncomfortable. It is difficult to reconcile J.L.'s claim of discomfort about Respondent's alleged statement, "So you were having sex at 15," with (1) her admission that she was having sex at 15, (2) her telling Respondent that her boyfriend was living with her, and (3) her apparent comfort in talking to Respondent about "concerns with her boyfriend regarding sex." Respondent's account of the August 25 conversation is that it lasted approximately one minute, consisted of J.L. coming up to his desk after class and telling him she had to take the bus home, and his simple response to the effect, "Then don't miss your bus." Respondent testified at the final hearing that he thought at the time that J.L. was implying that she wanted him to give her a ride home, which he had no interest in doing. J.L. subsequently changed her account of what happened on August 25. J.L. admitted that she changed her story at her deposition when she was asked why she would have given Respondent her email address on August 25, if he had made her feel uncomfortable on that day. J.L.'s revised account of the events was that Respondent did not say anything to her on August 25 to make her feel uncomfortable and that is why she was willing to give him her email address. According to J.L.'s revised account, all of Respondent's statements that caused her to feel uncomfortable occurred on August 29, 2006. J.L. tried to explain how her witness statement could be reconciled with her final hearing testimony. However, her explanation was unpersuasive. J.L. ultimately conceded that her written statement was "really twisted" and "that's not how it happened at all." The August 29 Conversation The central elements of the August 29 conversation between J.L. and Respondent, according to the written statements of J.L. and Mr. Rigling and their testimony at the final hearing, are as follows: J.L. and Respondent were alone in the classroom. J.L. initiated the sexual content of the conversation. J.L. told Respondent that her boyfriend was pressuring her to engage in a "threesome." Respondent repeatedly tried to steer the conversation to sexual matters. Respondent told J.L. she was pretty. Respondent asked J.L. about her "favorite position." J.L. felt uncomfortable. Respondent gave J.L. a greeting card. Respondent's account of the August 29 conversation is that J.L. talked about her family, her plan to go away to college, and that her boyfriend lived with her. Respondent testified that he told J.L. not to focus on her boyfriend and sex, but to focus on academics. He denies telling J.L. that she was pretty and asking her about her favorite sexual position. Respondent handed J.L. the greeting card which he thought she had requested. Respondent claims that during at least half of the conversation, another student was in the room using the telephone. Assistant Principal Laura Beusse testified that the appropriate action for a teacher to take when a student reveals personal sexual matters is to notify a supervisor. The Greeting Card When Respondent gave J.L. the greeting card, it was in an envelope. J.L. did not open the card when she was in the classroom with Respondent on August 29. She did not open the card until she got home later that day. J.L. testified that when she asked for a card, she meant Respondent's business card. Respondent says he did not have any business cards, and he thought J.L. wanted his email address in a greeting card. Respondent thought the card was a good opportunity to give J.L. positive reinforcement, which the teachers at Ocoee High School were encouraged to do. J.L. described the greeting card as "a nice gesture," but also testified that it upset her "a little" because "I didn't know what he expected." Respondent's statements of praise for J.L. in the greeting card are exaggerated in light of what he knew about J.L. and the fact that he had already observed that she was not a good student. His explanation for the words he used was that it was just his "style" of making a positive personal connection with J.L. Assistant Principal Beusse was not asked specifically about the greeting card, but she testified that it was important for teachers to make personal connections with their students. The School Board focuses on two elements of the greeting card that it claims were inappropriate. First, the School Board claims it was inappropriate for Respondent to give J.L. his personal email address in the card. However, no evidence was presented to show that it is contrary to a specific policy of Ocoee High School or the School Board for a teacher to give a student his or her personal email address. The unrebutted testimony of another Ocoee High School student and J.L.'s best friend, Shannon Ballard, was that "a lot of teachers give out their [private telephone] numbers" to students so the teachers can be more easily available to students if the students need help. The School Board's second claim regarding the greeting card is that is was inappropriate for Respondent to end the card with the salutation, "Your Friend." However, Respondent signed the card "Mr. Parisi," rather than with his first name. When J.L.'s mother saw the greeting card, she thought it was "friendly," "encouraging," and did not think there was anything in it that was inappropriate. Mr. Rigling did not consider the statements made by Respondent in the greeting card to be inappropriate. In email correspondence between Mr. Rigling and J.L., she discussed personal (including sexual) subjects and they exchanged expressions of fondness. J.L. began one email "Dearest Mr. Rigling," and in another mentions cheating on her boyfriend "last night in a very ungodly way." Mr. Rigling responded "You and I are kindred spirits," "You have a big fan here," and "You have helped and inspired me." Credibility In a case like this, where there are no witnesses other than the accuser and the accused, the Administrative Law Judge must examine the record for indices of credibility or lack of credibility, weigh the evidence, and determine who is more believable. Having considered the evidence presented and the demeanor of the witnesses, it is found that Respondent's account of the events is more believable than J.L.'s account. This finding is based in large part on the following evidence: There was a clear and compelling motive for J.L. to fabricate accusations against Respondent. The accusations provided the substantial reason required to get out of Respondent's class and avoid a bad grade, which would jeopardize her ability to graduate. J.L. did not accuse Respondent until after she was told by Mr. Rigling that she needed a substantial reason to get out of Respondent's class. J.L.'s accusation was easy to fabricate because she had already set the stage for the accusation by initiating a conversation with Respondent about her sexual experiences, and she could use the greeting card to support her story. J.L.'s worst accusation against Respondent, that he asked her what her favorite position was, sounds like something an adolescent would make up if she had only a short time to fabricate an improper teacher statement. J.L. did not expect her accusation to cause Respondent to be fired. That serves to explain why J.L. was willing to do something so destructive to Respondent's teaching career and life; she did not foresee the consequences. Just before she made her accusation against Respondent, J.L. told her best friend, Shannon Ballard, about the card she received from Respondent, but said nothing about him asking about her "favorite position." Shannon said she was "amazed" J.L. did not tell her about that. J.L.'s failure to tell Shannon the rest of the story is consistent with the proposition that there was nothing else to tell; the accusation had not yet been fabricated. J.L.'s story changed, and the change appears to be the result of fabrication, rather than innocent mistake. J.L.'s claim of discomfort is not consistent with her personality, which her best friend aptly described as "very forward." This is a 17-year-old who is not uncomfortable about telling a teacher she hardly knows that her boyfriend is pressuring her to have a "threesome." A teacher's comments to a student can be improper and constitute misconduct without regard to whether the student was offended, embarrassed, or otherwise made uncomfortable by the comments. The point here is that J.L.'s claim of discomfort is not credible. J.L.'s accusations also require a finding that Respondent, who had recently received his master's in education with accolades from university faculty and was only in his third week as a new high school teacher, was already attempting to steer a student into some kind of sexual relationship. Such a thing is possible, but would represent an extreme deviation from common moral conduct and, therefore, requires a concomitant degree of proof to believe, which was lacking in this case. With regard to Respondent's credibility, the worst that can be said of his actions is that by giving J.L. a greeting card during the school year, he created a situation where his intention of providing her with positive reinforcement could be misperceived by J.L as a romantic gesture. The same card, if given on the last day of school, would probably not have been perceived to have a possible romantic connotation. However, Respondent's use of the card can be explained by his naiveté and enthusiasm as a new teacher. When considered with the totality of the evidence, the card does not prove the veracity of J.L.'s accusations. Furthermore, when Respondent's greeting card is compared with Mr. Rigling's correspondence with J.L., it can be seen that J.L.'s "very forward" behavior caused both men to wax poetic near the boundary of propriety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order rescinding its prior action against Respondent and reinstating his employment as a professional service contract teacher with the School Board, as well as any pay and benefits of which he was deprived. DONE AND ENTERED this 24th day of August, 2007, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 24th day of August, 2007.
Findings Of Fact Respondent in this proceeding is Lloyd Wright. At all times pertinent to these proceedings, he was a social studies teacher employed by the St. Lucie County School District on a professional contract status and assigned to Westwood High School. He holds Florida Teaching Certificate No. 395537. On February 17, 1987, Respondent was suspended from his duties as a teacher for the school district. After an administrative hearing on issues relative to his employment, final order dismissing Respondent from his employment was issued by the school district on September 8, 1987. James Andrews is the principal of Westwood High School. Andrews has known Respondent as a friend, and as a member of the teaching staff at the school, for many years. On February 4, 1987, Andrews was at home with his ill son. His secretary telephoned him regarding allegations being voiced against Respondent by a female student. That student's allegations, and statements of other students alleged to be witnesses, were reduced to writing at Andrews' instruction and reviewed by him upon his return to the office on February 5, 1987. That evening he met with the complaining student, Tenecia Poitier, and her father. He assured them that the matter would be taken up with his superiors. On the morning of February 11, 1987, Andrews brought the allegations to the attention of the school district's Director of Secondary Education during a visit by the director to the Westwood Campus. That afternoon, the director telephoned Andrews and requested that additional statements be obtained from the students. Pursuant to those instructions, Andrews met with the students who had given the previous statements and instructed them to provide the additional statements to him. He forwarded these statements to the district school board office. Andrews has been the principal at Westwood High School for seven and a half years. He holds a master's degree in guidance and counseling and has completed course work in the areas of administration and supervision in excess of 30 academic credit hours. He has served in the educational system for approximately 35 years. Service in the positions of classroom teacher, guidance counselor, assistant principal and principal are included in the scope of his experience. Andrews regularly instructed the staff at the school to refrain from using slang in the classroom, becoming familiar with students or putting their hands on students unless necessary to prevent injury to a student or others. This admonishment by the principal was applicable to all students without regard to race or sex. He does not think it appropriate for a teacher to use the word "fuck" or the phrase "I am going to fuck your brains out" in the classroom. Andrews also finds the use of the phrases "Girl, I want that thing" and "Girl, I'm going to take you to the bushes" inappropriate for a male teacher to use in conversation with a female student. He would not want a male teacher who touched female students intentionally on the buttocks or thighs, or used such words or phrases in the classroom, on his teaching staff. Tenecia Poitier graduated from Westwood High School in 1988. In the 1986-87 school year, she was a student in Respondent's World History class. On one occasion, Respondent pushed Poitier against the wall of the classroom with other students present and told her "One of these days, I'm going to fuck your brains out." Once, when she was going to the school cafeteria, Respondent told her "Girl, I want that thing." Respondent touched Poitier on the leg and buttocks on other occasions and made suggestive statements to her. In response, Poitier rejected Respondent's advances by cursing him and, on one occasion, striking him. Another incident occurred when Respondent seated himself in front of Poitier's desk and propped his feet on her desk in a crossed fashion. The result of Respondent adopting this seating posture meant that Poitier had to look between Respondent's legs when she looked up from her desk work. Poitier got out of her desk, struck Respondent with her notebook, cursed him and told him to get his legs off her desk. Poitier did not observe Respondent engage in this seating conduct with other students. JoAnna McGee was a ninth grade student when she had Respondent as her teacher for World History. Respondent saw McGee walking down the street one day. He sounded his automobile horn at her. Later, when he saw her in the classroom, he told her that if he saw her walking on the street again he would take her "in the bushes." Respondent hugged McGee and other female students on occasion. Tony Lee was a student in Respondent's World History class, along with Poitier. Lee was aware of Respondent's joking and bantering with students. Female students would congregate around Respondent's desk when these sessions occurred. On one of these occasions, female students laughingly said they needed some candy to suck, and Lee heard Respondent reply "I've got something to suck on right here." Lee also heard Respondent make the statement "fuck your brains out" during an exchange with students. Lee overheard Respondent using the phrase "pull your clothes down" in a conversation with Poitier. Lisa Frazier was also a classmate of Poitier during the World History class taught by Respondent. She observed Poitier curse Respondent and strike him with her notebook. Frazier also testified that Poitier had a reputation for disruptive behavior and that Respondent used slang language with students. Respondent admitted using slang expressions, including the phrases "take you to the bushes" and "take you to the woods," in classroom settings with female students. Respondent admitted to a practice of hugging male and female students. Respondent also testified that he never told Poitier that he wanted to "F--- her brains out." When confronted with his sworn testimony from a previous proceeding that he did not recall making the statement, Respondent explained that his previous answer was made upon advice of his counsel at that time. Respondent's denial in this proceeding that he never made such a statement to Poitier, along with his testimony that hugging of students was an unintentional result of previous coaching experience, is not credited in view of his demeanor while testifying. Further, his testimony that his use of the phrases "take you to the bushes" or "take you to the woods" resulted from a film observed in the class and were meaningless slang terms devoid of sexual innuendo, is not credible. Also, the testimony of students Lee and McGee corroborates Poitier's version of Respondent's behavior and further discredits Respondent's testimony, including his explanation that Poitier's complaint against him resulted from Respondent writing up Poitier for academic and disciplinary reasons. Other students were also written up as often as Poitier.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's teaching certificate. DONE AND ENTERED this 28th day of November, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the clerk of the Division of Administrative Hearings this 28th day of November, 1988. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed Findings 1.-2. Addressed. Unnecessary to result reached. 4.-12. Addressed. 13. Unnecessary to result. 14.-15. Adopted in substance. 16. Unnecessary to result reached. 17.-21. Addressed. 22.-24. Unnecessary to result reached. Addressed in part, remainder unnecessary to result. Unnecessary to result reached. 27.-28. Addressed. 29.-30. Adopted in substance. 31. Unnecessary to result reached. 32.-33. Addressed. 34.-35. Unnecessary to result reached. Addressed. Rejected as a conclusion of law. Respondent's Proposed Findings 1.-2. Addressed. 3.-6. Unnecessary to result reached. 7.-8. Cumulative, subordinate and unnecessary to result. 9.-13. Unnecessary to result reached. 14. Addressed. 15.-17. Unnecessary to result reached. Rejected as cumulative. Rejected, contrary to weight of the evidence. Rejected as a conclusion of law. Rejected, not supported by weight of the evidence. Unnecessary to result reached. Addressed in substance. 24.-25. Unnecessary to result reached. 26.-27. Addressed in substance. 28. Unnecessary to result. 29.-30. Addressed. COPIES FURNISHED: Betty J. Steffens, Esquire Post Office Box 11008 Tallahassee, Florida 32302 Lorene C. Powell, Esquire 208 West Pensacola St. Tallahassee, Florida 32301 Sydney H. McKenzie, Esquire. General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Hon. Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue The issue is whether Petitioner properly determined that Respondent's employment should be terminated.
Findings Of Fact At all times material here, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Taylor County, Florida. A Master Teacher Contract between Petitioner and the Taylor Education Association governs relations between Petitioner and its teachers. Respondent is an educator, with 35 years of teaching experience. She is certified by the Florida Department of Education to teach students enrolled in the Exceptional Student Education (ESE) program. Respondent has at least 20 years of experience in teaching ESE students. During the 2009-2010 school year, Petitioner employed Respondent as an annual contract teacher at Perry Primary School. Pursuant to the contract, Petitioner hired Respondent to work from August 17, 2009, to June 9, 2010. Respondent’s class during the 2009-2010 school year was made up of students with varying exceptionalities. The exceptionalities included handicaps such as specific learning disabilities, attention deficit disorder, autism, or emotional or physical handicaps. The class consisted of students in kindergarten, first, and second grades. At the outset of the 2009-2010 school year, Respondent was assigned eight students, two of which had a full-time personal assistant. Just prior to the Christmas break, Respondent was assigned another ESE student with a full-time personal assistant. The primary responsibility of the personal assistants was to help their designated students function successfully and safely in the classroom. Additionally, the personal assistants were supposed to support the classroom teacher as needed. In addition to the personal assistants, Respondent’s class utilized the services of Behavioral Management Center (BMC). The BMC consultants visited Respondent’s classroom frequently to develop and monitor the implementation of behavior modification plans for certain students. The school psychologist also visited the classroom frequently to assist the teacher and students. Petitioner uses many computer software programs for the testing and monitoring of student progress. The computer programs are necessary in order to comply with Florida Department of Education requirements. The computer programs are used throughout the state and require data entry and transmission at several points in the academic year. Gradequick is a program that enables teachers to electronically enter student grades. Among other tasks, the program calculates grade point averages. The grades and averages are then entered in the Edline program that is accessible by both parents and students. Administrators can access these programs to ascertain the level of progress by a particular class or student. For the 2009-2010 school year, the initial Gradequick and Edline training was conducted the first week of September 2009. Respondent attended the training session. Tienet is a computer program used to assist with the drafting of individual education plans (IEPs) for ESE students. It is a web-based program that also is used to monitor a student’s progress in accomplishing the goals and objectives on the student's IEP. Tienet generates a parent report that goes out with report cards. All students in Respondent’s 2009-2010 class were learning in accordance with an IEP. Aimsweb is a computer program that monitors compliance with state and federal guidelines regarding student achievement and progress in reading and math. Aimsweb requires that all students be tested at the beginning, middle and end of the school year. The teacher uses the initial test or “probe” to determine the child's baseline. Other probes are performed on a weekly basis throughout the school year. Petitioner can use the data to determine if a child is academically at risk and, if so, to implement interventions to address any deficiency. FAIR is a state-mandated assessment test in reading that also is given three times a year. FAIR provides for an exemption for students who are severely limited academically. However, Petitioner always completes the initial FAIR test for all students, regardless of academic ability. After assessing the results of the first probe, Petitioner can then determine whether students will be exempted from further testing. In the 2009-2010 school term, Jack Palaio was an ESE resource teacher and the Perry Primary School technology coordinator. As technology coordinator, Mr. Palaio had to make sure the teachers’ and students’ computers were up and running. He also trained staff and teachers on the use of the computer software programs referenced above. Mr. Palaio’s responsibilities included monitoring data collection and data transmission from the classrooms. On or about September 2, 2009, Mr. Palaio requested that Respondent provide him with a list of her students. Mr. Palaio needed the names to made sure the students were placed in the proper Gradequick files. As of September 14, 2009, Respondent still had not provided Mr. Palaio with the list of names. In addition to the training sessions taught when school began, Mr. Palaio offered to assist Respondent on several occasions starting at the beginning of the year. At times, Respondent sought help from Mr. Palaio in person or by email. By mid-year, it should not have taken Respondent but a few minutes per student to enter weekly data on Gradequick. Aimsweb should have required no more than five minutes per student on a weekly basis. The FAIR data requires very little time because the teacher enters it while testing the students. Tienet data entry takes even less time because it requires formulation of IEPs only once a year and review and maintenance quarterly. Pam Padgett was the assistant principal at Perry Primary School. On September 15, 2009, Ms. Padgett advised Respondent to provide Ms. Padgett with a copy of Respondent’s class schedule. The schedule was necessary to show the times that Respondent intended to teach specific subject areas. On September 15, 2009, Ms. Padgett also informed Respondent that her students would need to take the initial FAIR and Aimsweb probes in order to establish baselines. Ms. Padgett advised Respondent that other staff members would do this testing for Respondent. In September 2009, two of Respondent’s students were exempt from taking the initial FAIR reading probe because of their disabilities. The two students were supposed to be tested using an alternative assessment known as the Brigance. Petitioner’s staff decided to test the two students on the FAIR material, using a paper test, in addition to the Brigance test. The Brigance test, in booklet form, was supposed to be given three times a year. Teachers used a different color to score students’ tests each time it was administered. On September 17, 2009, Mr. Palaio requested Respondent to see him about testing her students using the Brigance. Mr. Palio also offered to help Respondent set up Edline for her class. Alise Thompson is the Intervention Resource Compliance Specialist at Perry Primary School. In the 2009-2010 school year, she was responsible for ensuring that teachers properly drafted IEPs using Tienet and for scheduling IEP meetings. On September 21, 2009, Ms. Thompson instructed Respondent to prepare the IEP (goals and objectives) for a student. She reminded Respondent that the IEP meeting for the student was scheduled for September 25, 2009. On September 22, 2009, Mr. Palaio advised Respondent that her class was set up in Gradequick so that she could start adding weekly grades. Mr. Palaio asked Respondent to see him for information about entering the grades in Gradequick. On September 29, 2009, Mr. Palaio again reminded Respondent that she needed to enter her grades in Gradequick so that she could send home midterm progress reports the next day. On September 30, 2009, Mr. Palaio advised Respondent that her kindergarten student needed to have grades entered in the computer on a weekly basis for reading now and for reading, spelling, and math beginning in January. He also reminded Respondent that her first and second grade students needed grades for reading, math, and spelling. As of September 30, 2009, Mr. Palaio had prepared the midterm reports for Respondent’s first and second grade students. He also offered to do the same for the kindergarten student if Respondent would send him the necessary information. Mr. Palaio reminded Respondent that she had been provided with additional computer training in Edline and needed to post her grades in Gradequick on a weekly basis. The September 30, 2009, email to Respondent told her to put her Brigance booklets back in the students’ cumulative folders in the school office. This was necessary in order to ensure their safekeeping. On October 26, 2009, Perry Primary School was preparing to send report cards home for the first nine weeks. Mr. Palaio offered to help Respondent in this regard if she encountered any difficulty. On October 28, 2009, Mr. Palaio offered to help Respondent with entering grades in Gradequick because she was late in doing so. Mr. Palaio advised Respondent that he had corrected some of her inconsistencies, but that he was more concerned with her failure to enter all required grades for her students. Specifically, Mr. Palaio noted that Respondent had not entered grades for some children for over two weeks. George Clayton was the principal of Perry Primary School for the 2009-2010 school year. Around the end of October or the beginning of November 2009, Mr. Clayton sent Respondent a reminder that she was two weeks behind in posting her grades to Edline and entering grades to Gradequick. Mr. Clayton told Respondent to "take care of this matter." Anne Sesock, as the Response to Invention (RTI) Specialist for the 2009-2010 school term, was responsible for monitoring teachers’ data for FAIR and Aimsweb testing at Perry Primary School. Over time, Ms. Sesock became aware that Respondent was behind on her FAIR and Aimsweb testing and/or data entry. On October 29, 2009, Ms. Sesock reminded all teachers that Thursday was the day they should monitor progress of their students in math using Aimsweb. Ms. Sesock had already entered the students’ names into the computer. Ms. Sesock then gave a brief description of how to perform the task. On October 30, 2009, Ms. Sesock reminded certain teachers, including Respondent, that they needed to enter their reading/literacy scores into Aimsweb. This was necessary for the school to prepare for a data meeting. On October 30, 2009, Mr. Palaio reminded Respondent that she needed to see about her Tienet progress reports that had to go home with student report cards. Mr. Palaio sent Respondent another message on October 30, 2009. In that message, Mr. Palaio stated that one of Respondent’s students still needed early literacy scores entered in Aimsweb. On November 2, 2009, Perry Primary School sent report cards home. Ms. Padgett asked Respondent to a meeting regarding Respondent’s failure to send Tienet parent reports out with report cards. On November 2009, Mr. Palaio responded to Respondent’s request for help in checking her students’ grades and parent reports. Mr. Palaio advised Respondent that he had corrected the grades in Gradequick so that she would now be entering grades for the second nine weeks. He stated that she had some grades missing and needed to be consistent in entering the grades. He also reminded Respondent that she needed to make corrections in the Tienet parent reports relating to student objectives, which should have been sent home with the last report cards. On November 17, 2009, Ms. Sesock directed Respondent to bring certain Aimsweb reading benchmark assessment sheets to a training session that afternoon. Ms. Sesock offered to enter them in the computer. In November 2009, Mr. Clayton became concerned with the lack of structure and student behavior problems in Respondent’s classroom. He subsequently initiated a plan to provide Respondent with help in this regard. On November 23, 2009, Ms. Padgett advised Respondent that a substitute would be available the next day so that Respondent could meet with school staff and the BMC consultant. The purpose of meeting was to develop a schedule and activities for Respondent’s class. On or about November 24, 2009, Respondent, the BMC consultant, and other school staff members met to develop a Tuesday/Thursday schedule for Respondent’s class. After the meeting, Respondent was supposed to develop a similar schedule for Monday, Wednesday, and Friday. There is no persuasive evidence that Respondent ever completed this task. The Tuesday/Thursday schedule provides for whole group time beginning at 8:00 a.m. As the day progresses, the personal assistants were assigned to work one-on-one with a student, in small groups, or large groups, while Respondent worked one-on- one or two-on-one with specific students. To supplement the Tuesday/Thursday schedule, Respondent and the BMC consultant developed a Tuesday/Thursday Lesson Plan of 1:1 or 2:1 Instructions. The lesson plan names specific students and the skills/materials to be used with that student. On December 1, 2009, BMC staff visited Respondent’s classroom to observe implementation of the new schedule. They advised Ms. Padgett that Respondent stayed on the schedule for part of the day, but failed to follow it for the rest of the day. On December 1, 2009, Ms. Padgett provided Respondent with a copy of a walk-through monitoring form to be used when she and other administrative staff visited Respondent's class. Ms. Padgett reminded Respondent to post her class schedule for all support staff during the times that Respondent and the personal assistants were working one-on-one with students and in group time. On December 2, 2009, Ms. Padgett shared BMC’s concerns with Mr. Clayton. On December 3, 2009, Ms. Padgett visited Respondent’s classroom to observe a reading lesson under the new Tuesday/Thursday schedule. Ms. Padgett noted that Respondent was behind schedule but appeared to be implementing the new plan. Ms. Padgett subsequently provided Respondent with written observations, setting forth strengths, missed opportunities, and something to work on. In December 2009, Ms. Padgett became aware that Respondent had not done the required mid-year FAIR testing or had done the testing but failed to enter the data in the computer. On December 3, 2009, Mr. Palaio advised Ms. Padgett that Respondent had not started a single FAIR test. The next day, Ms. Padgett directed Respondent to begin FAIR-testing her students and to get help from Mr. Palaio and/or Ms. Sesock, if needed. On December 4, 2009, Mr. Palaio advised Respondent and another teacher that they needed to complete the regress/recoupment forms for their students before Christmas break. The forms are used three times a year to record test data on the same specific skill. The data is used to determine whether a student requires an extended school year (summer school) as an accommodation. On December 7, 2009, Mr. Clayton responded to Ms. Padgett that he was disappointed in Respondent’s failure to adhere to the new schedule. Mr. Clayton stated that he would be visiting Respondent’s class that day. From December 8, 2009, through December 11, 2009, Respondent was absent from school because she had pneumonia. During that week, Respondent came to school one time for a meeting at Mr. Clayton’s request. The meeting related to a student that would soon be entering Respondent’s class. There is no record of Respondent receiving emails from school while she was home sick. Accordingly, the following emails dated December 8 through 11 may not have been read by Respondent until she returned to school on December 14, 2009. On December 8, 2009, Mr. Palaio sent Respondent an email. He advised her that certain students were missing a spelling score in the FAIR testing. On December 9, 2009, Ms. Thompson reminded Respondent that an IEP meeting was scheduled on December 11, 2009, for "O." Ms. Thompson had started the IEP but reminded Respondent to add the goals. The December 11, 2009, IEP meeting obviously had to be cancelled because Respondent was home sick and had not completed drafting the IEP. On December 10, 2009, Mr. Palaio sent Respondent an email. Once again, he reminded her that she needed to enter FAIR scores for spelling. On December 11, 2009, Mr. Palaio sent Respondent an email. Once again, he reminded Respondent to complete the regress/recoup form with all students that week. On December 16, 2009, Mr. Palaio advised Respondent that the initial regress/recoup testing had been done by another staff member the week before and that he had entered the scores. Mr. Palaio provided Respondent with a spreadsheet showing the results of the first probe that needed to be repeated the first day after Christmas break and then again two weeks later. On December 17, 2009, Mr. Palaio reviewed the policy at Perry Primary School regarding the need to check email three or four times a day. Teachers were supposed to read email before school, after reading, during lunch, and after school. Respondent was advised that teachers are held responsible for knowing the information contained in school emails, including requests for specific data. On December 17, 2009, Ms. Sesock reminded all teachers to complete their Aimsweb math and reading probes. Ms. Sesock wanted all teachers to enter the data that day or the next day so that the data would be available in January for intervention assistance team meetings. In an email dated January 3, 2010, Ms. Sesock wanted to know about missing scores in Respondent’s Aimsweb progress monitoring. Ms. Sesock could not run charts on the students until all scores were entered in the computer. January 4, 2010, was a teacher-planning day. During the day, Mr. Palaio sent Ms. Sesock a list of teachers, including Respondent, who had missing Aimsweb data as of December 18, 2009. Ms. Sesock responded with an email inquiring whether they could give Respondent an explicit instruction booklet on how to input scores so Respondent would learn to do it herself and quit bothering them. On January 4, 2010, Mr. Palaio reminded Respondent and other teachers that they needed to complete the second set of regress/recoup progress monitoring. He advised them to use the spreadsheet started before Christmas and to repeat the process on January 19, 2010. On January 5, 2010, Mr. Palaio requested that Respondent see him about Aimsweb and Brigance. He wanted to assist her with the Brigance books and Aimsweb probes. On January 5, 2010, Respondent injured her shoulder and knee when she fell after tripping over a student at school. She was prescribed pain medication (Vicodin and Celebrex) and required to wear a leg brace. Respondent claims that the medications made her sleepy and made it difficult for her to focus. However, she did not complain to anyone at Perry Primary School that the medications were interfering with her performance. On January 8, 2010, Ms. Thompson advised Respondent and other teachers about completing IEPs. Specifically, she reminded them that they needed to enter the accommodations for each child on an individual basis. On January 11, 2010, Mr. Palaio requested that Respondent see him that day. Mr. Palaio wanted to discuss Respondent’s scores for Brigance, Aimsweb, and Tienet. By January 2010, Mr. Clayton was aware that Respondent and the three personal assistants in her classroom were not working as a team. The personal assistants resented having to work with small or large groups of students while Respondent worked with students on a one-on-one or two-on-one basis. Mr. Clayton had a meeting with Respondent and her personal assistants on January 13, 2010. He gave the personal assistants a copy of their job descriptions. He reminded them that Respondent was the class leader and that they were her support staff. On January 13, 2010, Mr. Clayton told the personal assistants that they had to stay with their assigned students when BMC staff came to model implementation or observe implementation of a behavior plan. He did not want the assistants to think they could take a break every time BMC staff visited the classroom. During the January 13, 2010, meeting, Mr. Clayton discussed the Tuesday/Thursday schedule developed by BMC staff. He requested that Respondent develop a Monday/Wednesday/Friday schedule, using the same format, and give it to him. Mr. Clayton was concerned that there was not a consistent daily routine in Respondent’s classroom. Mr. Clayton also discussed Respondent’s lesson plans during the January 13, 2010, meeting. Mr. Clayton wanted Respondent to give him a copy of her lesson plans for the upcoming week every Friday before she left school. The first Friday that Respondent should have given Mr. Clayton her lesson plans was on Friday, January 15, 2010. As a general rule, teachers kept their lesson plans, two weeks in advance, in spiral notebooks provided by the school at the beginning of the school year. Teachers were supposed to keep the lesson plan books on their desks at all times. Mr. Clayton reviewed the lesson plans on a regular basis. Mr. Clayton made the special request on January 13, 2010, about Respondent’s lesson plans because he never saw her plan book on her desk. When he asked about the plan book, Respondent always said it was in her car or at home. During the January 13, 2010, meeting, Mr. Clayton instructed Respondent to provide each personal assistant with a copy of the IEPs and behavior plans for each student in the class. Mr. Clayton wanted the personal assistants to be familiar with all of the students’ IEPs and behavior plans so that they would know what to do in the absence of Respondent or a colleague. The greater weight of the evidence indicates that Respondent never complied with Mr. Clayton’s directive in this regard. Finally, Mr. Clayton told Respondent on January 13, 2010, that her class would be moved that weekend from a portable classroom to a classroom in the main building. The purpose of the move was to place the class closer to the school clinic to accommodate a student with medical issues. Mr. Clayton created written minutes of the January 13, 2010, meeting to share with Respondent and the personal assistants. Following the meeting on January 13, 2010, the assistants became more cooperative. On January 13, 2010, Ms. Sesock told Respondent how important it was for her to have up-to-date progress monitoring data for Aimsweb reading and math. At that time, Respondent had not entered the required weekly progress monitoring data, seven scores in math and five scores in reading. The second benchmark assessment for Aimsweb was due to be entered between January 11, 2010, and January 15, 2010. Ms. Sesock wanted to make sure that Respondent had all the materials she needed to perform the assessment. On January 13, 2010, Ms. Thompson reminded Respondent that "O's" IEP meeting was scheduled for Friday, January 15, 2010. Ms. Thompson requested that Respondent update his academic and behavior goals before the meeting. The next day, Ms. Thompson directed Respondent to update "O's" curriculum and behavior goals. On January 15, 2010, the IEP meeting had to be rescheduled because Respondent did not have “O’s” IEP properly drafted. Ms. Thompson sent an email to Respondent, stating that Respondent needed to separate goals and objectives on the IEP by subject area. For example, Respondent needed one goal and two objectives for reading, math, and behavior. After receiving a copy of Ms. Thompson’s January 15, 2010, email to Respondent, Mr. Clayton directed Respondent to complete “O’s” IEP goals by January 19, 2010. Mr. Clayton told Respondent to put the IEP in his mailbox before she left school on the 19th. On January 15, 2010, Respondent did not provide Mr. Clayton with the lesson plans for the upcoming week. Instead, she left school early for a doctor’s appointment and took the rest of the day off. On January 19, 2010, Mr. Clayton advised Respondent that he had reviewed her Aimsweb data and that it was not updated. He told her to update the reading and math data before she left school on January 21, 2010. During the 2009-2010 school year, Respondent had completed two IEPs before attempting the IEP for “O.” However, Respondent failed to complete “O’s” IEP and place it in Mr. Clayton's mailbox on January 19, 2010, as requested. On January 19, 2010, Mr. Palaio sent Respondent an internet link for Tienet. Apparently, Respondent had lost the website address. On January 21, 2010, Mr. Clayton issued Respondent a letter of reprimand for “insubordination” for failing to complete “O’s” IEP on time. Respondent received the January 21, 2010, letter of reprimand, concerning the IEP, in her mailbox at school. Respondent’s failure to timely complete the IEP was gross insubordination. Respondent had been given more than enough time and assistance to properly draft the IEP. There is no persuasive evidence that Respondent’s pain medication was responsible for her inability to complete the IEP. On January 21, 2010, Ms. Thompson advised Respondent that corrections still needed to be made to “O’s” IEP. Respondent was told that each area of the IEP needed a present- level statement followed by at least one goal and two objectives. Later that day, Mr. Palaio gave Respondent additional suggestions to make the IEP meet Petitioner’s ESE standards. On January 21, 2010, Mr. Palaio sent Respondent an email. The message reminded Respondent that most of her Aimsweb scores had not been entered. On the morning of January 22, 2010, Mr. Clayton shared some of his concerns with Respondent in an email. First, he discussed Respondent’s need to conduct Aimsweb progress monitoring probes in reading and math. Second, Mr. Clayton was worried about Respondent’s failure to enter grades in Gradequick, advising her to see Mr. Palaio by the end of the day to resolve this matter. Third, Mr. Clayton reminded Respondent that she needed to be using the school-wide behavior modification program. Fourth, Mr. Clayton noted some errors in “O’s” IEP. Fifth, Mr. Clayton told Respondent not to forget to do the ESE regress/recoup form. Finally, Mr. Clayton reminded Respondent that she was supposed to provide him with a copy of her lesson plans before leaving school that afternoon. Mr. Clayton wanted to make sure that Respondent received his January 22, 2010, email. He asked his assistant to call Respondent that afternoon. Realizing that Respondent was not in her classroom, Mr. Clayton requested the assistant to call Respondent’s cell phone and her husband’s cell phone. Because Mr. Clayton could not reach Respondent, he sent her another email at 3:55 p.m., telling her to contact Mr. Palaio if she and he were still on campus. Respondent left school on Friday, January 22, 2010, without giving Mr. Clayton her lesson plans. At 5:51 p.m. on January 22, 2010, Mr. Palaio sent Respondent an email. He reminded her to do her quarterly Tienet progress reports that were due to go home with report cards on January 27, 2010. On Monday morning, January 25, 2010, Mr. Clayton sent Respondent an email. The message stated that administration wanted to meet with her at 2:30 in Mr. Clayton’s office. Respondent was advised that she could bring union representation to the meeting. During the meeting on January 25, 2010, Mr. Clayton discussed Respondent’s failure to provide him with her lesson plans as directed. Mr. Clayton also told Respondent that her failure to complete a task by a given date constituted insubordination and served as grounds for termination. During the January 25, 2010, meeting, Mr. Clayton told Respondent that she had a chance to resign. Mr. Clayton stated that if she did not resign, he would contact the Superintendant and recommend her termination. Respondent could not make a decision to resign without talking to someone. Mr. Clayton told Respondent to let him know her decision by Wednesday, January 27, 2010. Respondent did not do so. At some point in time, Mr. Clayton placed a letter of reprimand, dated January 25, 2010, in Respondent's mailbox for failing to provide him a copy of her lesson plans on January 15, 2010, and on January 22, 2010. Mr. Clayton noted in the letter that he still had not received Respondent's lesson plans. Following the meeting, on January 25, 2010, Respondent got materials ready for her students for the remainder of the week. Respondent did not return to work until Monday, February 1, 2010. On January 26, 2010, Ms. Thompson advised Respondent by email that “O’s” goals and objectives were looking better. However, Ms. Thompson noted certain corrections needed to be made. Ms. Thompson placed a draft copy of the IEP, with notations, in Respondent’s mailbox. When Respondent returned to school on February 1, 2010, she gave Mr. Clayton a very detailed copy of her lesson plans for February 1, 2010, through February 12, 2010. The lesson plans were in a narrative form and not in a lesson plan book form that contains plans for a week at a glance. Even though the plans were not drafted according to Perry Primary School policy and were not the plans expected, Mr. Clayton provided Respondent with a lengthy critique of the lesson plans. On February 1, 2010, Mr. Clayton advised Respondent that she needed to complete the regress/recoup spreadsheet. He also told her that she still needed to fix “O’s” IEP by February 3, 2010, and before the IEP meeting on February 10, 2010. Mr. Clayton directed Respondent to complete the January Brigance testing before she left work on February 5, 2010. On February 1, 2010, Ms. Padgett sent Respondent an email regarding the reading programs in Respondent’s classroom. Ms. Padgett told Respondent that Ms. Padgett and the BMC staff had made certain decisions about the reading program while Respondent was absent from school. On February 2, 2010, Ms. Thompson advised Respondent that "O's" IEP was better. However, Ms. Thompson noted that Respondent needed to work on the reading goal and two objectives. On February 3, 2010, Ms. Thompson stated that she had met with Mr. Palaio and that he had offered some suggestions for “O’s” IEP. Ms. Thompson's message included a copy of a draft IEP prepared by Mr. Palaio. In a letter dated February 3, 2010, Mr. Clayton recommended that the Superintendant terminate Respondent’s employment. The letter references Respondent’s failure to provide him with lesson plans and the associated reprimand. The letter does not refer to Respondent’s reprimand for not completing the IEP goals. Mr. Clayton’s February 3, 2010, letter also included the following deficiencies: (a) Respondent never provided the personal assistants with the student behavior plans as instructed on January 13, 2010; (b) Respondent did not have her Brigance testing up to date; and (c) Respondent’s Aimsweb data was not up to date. In a letter dated February 5, 2010, Paul Dyal, Superintendant of Taylor County School District, advised Respondent that her employment was suspended with pay as of February 8, 2010. Mr. Dyal stated that the action was based on Respondent’s insubordination as outlined in Mr. Clayton’s February 3, 2010, letter. Mr. Dyal’s letter was hand-delivered to Respondent on February 5, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That The Taylor County School Board enter a final order terminating Respondent’s employment. DONE AND ENTERED this 22nd day of February, 2011, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2011. COPIES FURNISHED: Angela M. Ball, Esquire Post Office Box 734 Perry, Florida 32348 Ronald G. Stowers, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 Paul Dyal, Superintendent Taylor County School District Alton J. Wentworth Administrative Office Complex 318 North Clark Street Perry, Florida 32347 Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
