The Issue Whether Respondent shall be dismissed from employment with the Dade County School Board upon grounds of incompetency and gross insubordination pursuant to Section 321.36, Florida Statutes, and Rules 6B-4.09(1) and 6B-4.09(4), Florida Administrative Code.
Findings Of Fact Respondent was, at all times relevant, an employee of the School Board of Dade County, Florida on an continuing contract as a teacher. Respondent is a 49 year old native of Bolivia, South America. She was educated in Bolivia, Paris, and the United States, receiving a Bachelor's degree from the University of Miami in approximately 1969 and a Master's degree from Northwestern University. Respondent's positions with the Dade County School Board may be summarized as follows: In early 1970 she was a teacher of English as a Second Language (ESOL). From 1971 to 1973, she served as a media specialist (librarian) at Blue Lakes Elementary School. From 1973 to 1978 she was a media specialist (librarian) at Seminole Elementary School. From 1978 to 1981 she was a third grade teacher of normal students at Douglas Elementary School and from 1981 until her suspension between the 1983-1984 and 1984- 1985 school terms, she was a first grade teacher at Kinloch Park Elementary School. Respondent started employment with the Dade County School Board in 1970. While employed, she received annual evaluations; her evaluations and performance from 1971 to November 1, 1983 were all favorable, except for an evaluation in the 1979-1980 school year. Approximately June 3, 1980, Respondent was given an annual evaluation for her performance as a third grade teacher at Douglas Elementary School for the 1979-1980 school year. Therein, then-principal Eugene Turano found her unacceptable in six of the eight observable evaluation criteria. This annual evaluation resulted from two formal observations. In February 1980, Respondent was observed and evidenced disciplinary and teaching difficulties related to the reading program. This was Respondent's first experience teaching third grade and her first assignment to that school. Mr. Turano assigned Ms. Whipple, his assistant principal, to work with Respondents concentrating on lesson planning. The subsequent observation did not indicate much improvement. At each of these observations, Respondent had the entire third grade in one reading group, which grouping was felt by Mr. Turano not to respond to individual needs. Also bulletin board use by Respondent was not conducive to encouraging student interest or providing assessment feedback. Respondent stayed at her desk instead of giving children individual attention. Because Respondent was thereafter absent on sick leave from March until May 1980, there was no time for diagnostic prescription. As a results Mr. Turano gave Respondent the benefit of the doubt and did not formally recommend her termination or return to annual contract as he normally would have done. He did formally recommend her for employment and did personally suggest to Respondent that she take some summer school courses. In March, 1981, the Respondent received an official letter of reprimand for failure to implement her authorization for a period of leave of absence from the school system. Although this constitutes official disciplinary action by Petitioner, Dr. Gray's explanation of the reasoning behind it is not persuasive that anything occurred here beyond an absenteeism problem eventually fully- authorized by Petitioner. Respondent came to Kinloch Park Elementary in the 1981- 1982 school term to teach first grade. Respondent's 1981-1982 annual evaluation by then- principal Dr. James McKenna was overall acceptable. Then-Assistant Principal Lucy Williams observed Respondent in the 1982- 1983 term and, finding her teaching deficient, put Respondent on prescription. Her class of two groups of non-readers and one group which had just begun to read at the first grade level was kept small. Mrs. Williams taught all lessons herself for a while and gradually released the class to Respondent's full control again. Because Respondent complied by keeping adequate grades and lesson plans, by dividing her reading students into three groups, and by decorating with visual aids on the bulletin boards, Mrs. Williams removed Respondent from reading class prescription in the spring of 1983 before Mrs. Williams' transferred to another elementary school. Mrs. Williams removed Respondent from the prescription without observing her in reading. At that time, however, Respondent continued to have assistance in the area of math instruction. Starting in the 1983-1984 term, Respondent taught a Chapter One first grade class of 15 both English-speaking and non-English-speaking students. Kinloch Park Elementary had become an all Chapter One school in February, 1983. "Chapter One" is a classification that comprises students in a federally funded program designed to teach only basic skills for the entire day. The Chapter One first grade class of Respondent was in the lower twentieth percentile of learning ability. On November 1, 1983, Respondent was formally observed by Kinloch's new principal, Dr. Cecelia Hack, for evaluation purposes. New, more detailed observation forms were being used by Dade County at this time. Respondent was found to be unacceptable in six of the eight standard evaluation criteria. Most noticeably, Respondent was failing to use the directed reading approach all teachers had been instructed by Dr. Hack to use. This system, contemplated by the teacher's manual, provides for assembling three reading groups based on individual student assessments, which groups rotate through activities made up of teacher direction and two varieties of follow-up activities. Based upon Dr. Hack's observations and testimony, it is found that on this occasion, Respondent concentrated too much time on the workbooks did not provide the group working independently with sufficient and correct materials, did not have her evaluation folders up to date and had only one grade per child and that grade was for report card purposes. She also had not returned adequate amounts of graded materials to the students so as to provide acceptable feedback and encouragement to them. Dr. Hack further observed lack of courteous interchange between Respondent and her class. Respondent's comments to her students were terse, intimidating, and not encouraging to small children. The Room was cold and sterile without lively bulletin boards to spark student interest, encourage desire to learn, or to provide pride of accomplishment and additional feedback to the students. Respondent conferenced with Dr. Hack and the assistant principal, Norma Aguilar, on November 3, 1983 and was put on prescription. Among other actions for remediation, Dr. Hack suggested that Respondent provide classroom activities reflecting the assigned instruction policy. She further suggested that Respondent sit and plan on a regular basis with two other teachers of Chapter One first graders. She arranged for Respondent to visit other classrooms and asked Dr. Charles Sherwood, Petitioner's Director of Basic Education, to send members of his staff to work with Respondent. A Mrs. Gonzalez, Chapter One Specialist, came several times to assist Respondent in implementing the Chapter One program. Mrs. Ellen Williams came to update the student assessments for Respondent. A time- line was established for December 1, 1983. Assistant Principal Aguilar's assistance was part of the prescriptive measures assigned for Respondent. She visited Respondent on at least a weekly basis to check on Respondent's lesson plans and to talk about what Respondent was supposed to be doing. Respondent was instructed that she must duplicate her own materials for class as that was part of each teacher's duties, but she was provided reading materials she needed on her prescription and tapes with recorded lessons so that the children could do more independent work. Respondent expressed resentment of the prescribed activities. She turned in no lesson plans. Mrs. Hack also expected Respondent to attend an in- service course on the primary education program (PREP) and that she use "RSVP," a diagnostic prescriptive reading program. Although Respondent completed the in-service workshop ending in late February or early March, she did not complete her material to be turned in until June 25, 1985. On December 6, 1983, Respondent was formally observed by Assistant Principal Norma Aguilar, for evaluation purposes and was found unacceptable in three categories of the standard evaluation criteria. Mrs. Aguilar had been part of Respondent's previous prescription. Because of hers and Ellen Williams' involvement, the requirement for assessment techniques had been met and the grade book was up-to-date. Respondent had improved her teacher-student relationships somewhat in that Respondent had learned to give some positive reinforcement to her students. At that time, although some deficiencies had been corrected pursuant to the previous prescription, Respondent remained unsatisfactory in preparation and planning knowledge of the subject matter, and in techniques of instruction. Instructional activities, and follow-up thereto and reading progress were inappropriate for the students. Various groups now were set up but all groups were set at the same activity at the same time instead of each group rotating through three activities within each instructional hour. Respondent continued to use terms considerably above the children's understanding; her directions were unclear to small children; and she persisted in using only the workbooks for directed teaching. Prescriptive measures were again set out for the improvement of Respondent's teaching performance. On February 15, 1984, Respondent was again formally observed for evaluation purposes by Dr. Hack and was found unacceptable in five categories of the standard evaluation criteria. One category was not rated. The deficiencies were much the same as in November 1983. Particular problems were again noted in preparation and planning knowledge of the subject matter, classroom management, and techniques of instruction. Arrangements had not been made by Respondent for materials and the supplemental activities were not appropriate for the children doing the lesson plans. The children exhibited little respect for the material and did not seem to understand what was expected of them. Respondent constantly found fault with the children but contrariwise accepted sloppy written work. Respondent answered this criticism by saying she did not concern herself with neatness and manuscript form on math papers. Mrs. Hack felt Respondent was confused about what she was doing and although Respondent was grading more papers, Respondent was not returning graded papers regularly to meet the constant need of the children for feedback. Mrs. Hack felt Respondent's class should have moved much faster by so late in the school year and that the reading aspect was very weak. As remediation, Dr. Hack prescribed that Respondent use the teacher's manual and the "RSVP" decoding kits and books and that Respondent emphasize independent student activities that would keep all the students constructively occupied throughout each class hour. Further prescriptive measures were assigned. On March 22, 1984, Respondent was formally observed by Dr. Charles Sherwood, Petitioner's Director of Basis Education, for evaluation purposes and was rated unacceptable in four of the standard evaluation criteria. One category was not rated. At that time, Respondent's lesson plan was unacceptable because it provided insufficient student work. She was not using the required "9-block plan," rotating three groups of readers three times during the class session in twenty minute intervals per rotation. Her lesson plan showed an absence of anything but page numbers, which was directly contrary to county policy requiring minimally that objectives, independent activities, and evaluation methods be set out in the formal lesson plan. Appropriate classroom management was lacking in that many students were off- tasks although Dr. Sherwood noted that there was no genuine misbehavior. Respondent's only technique of instruction remained the directive approach. Her assessment technique was deficient in that only the first few weeks' assessment scores were evident. The children were about five months behind others comparably situated. In Dr. Sherwood's opinion, Respondent's excessive verbal instruction was not good for young students struggling with English who needed demonstrations rather than lectures. He felt Respondent's students were making less progress than normal for a Chapter One class. Further prescriptive measures were assigned Respondent after a conference with Dr. Hack. On April 18, 1984 Respondent was observed and evaluated again by Dr. Sherwood as unacceptable in four criteria. Two criteria were not rated. This left Respondent unacceptable in four out of six categories. Because of the short timeframe for prescribed remediation, Dr. Sherwood had assigned Ellen Williams' Director of the South Central Reading Center, to help Respondent. Mrs. Williams had worked with Respondent on methods of directing a reading lesson, maintaining close access to a chalkboard for introducing new vocabulary in context without the teacher having to leave the reading group, and had helped Respondent arrange the classroom furniture for group reading (instead of using rigid rows of desks). Thereafter, Respondent had returned the room to its original state. Dr. Hack and Mrs. Aguilar confirmed that a mobile chalkboard had been provided Respondent. Respondent explained her removal of the mobile chalkboard from her room as being done due to safety considerations occasioned by its sharp edges in near proximity to the faces of small children, but this does not explain why Respondent could not accomplish physical rotation of three groups of children so that each reading group would be near Respondent at the wall chalkboard during one of the required three teaching activities. The problems and unacceptable teaching activities observed by Dr. Sherwood on his second visit were very similar to those he observed on his first visit: absence of evaluation procedures and all students doing the same lesson regardless of their level of achievement. However, with Mrs. Williams' help, Respondent's records for evaluating student levels remained relevantly current. Dorothy Adside, an administrator at the level between area supervisor and school principal observed Respondent teaching on May 30, 1984. Prior to this observation, Mrs. Adside dispatched a primary educational specialist Mrs. Fulton, who conferred with Respondent and gave Respondent in-the-classroom assistance on two occasions. At the May 30 observation, however, Mrs. Adside found Respondent not acceptable in the categories of preparation and planning classroom management, techniques of instruction, and teacher-student relationships. She noted that there were no motivations for the children, not sufficient vocabulary development and not sufficient questioning from Respondent or use by her of visual study aids. Respondent's use of the "Round Robin" method of oral reading prevented the children from following her in their books as she read and otherwise thwarted the idea of rotating three activities for each group within a single class period. As a result of all the previous observations, evaluations, and unfulfilled prescriptions, Respondent's annual evaluation for the 1983-1984 school year was found to be unacceptable in four categories and unacceptable overall on June 1, 1984. There is a significant discrepancy between the testimony of the Petitioner's witnesses and that of Respondent with regard to the in-service courses assigned as prescriptive measures. On the basis of the documentary evidence as well as the candor, demeanor, and credibility of all witnesses as well as the detail provided by Dr. Hack and Mrs. Aguilar concerning these prescriptive measures and their personal observation of Respondent's participation and non-participation in all or part of these courses, Respondent's testimony that no course assignment was ever made is not persuasive. It is found that Respondent was orally requested to enroll in certain in-service training programs offered for February 25 to March 3, 1984, April 10 to May 15, 1984, May 5 to May 12, 1984, and June 2 to June 9, 1984, but these requests were not always reduced to a written prescription and Respondent may, indeed, have understood that she was only required to attend in-service training when the instruction was reduced to writing. None the less, Respondent enrolled in one course February 25 to March 3, 1984, but did not complete her work until ordered to do so by Mrs. Aguilar in June 1984. At the conference-for-the-record on April 30, 1984, Dr. Hack observed Respondent changed facial expression and made sounds expressing resentment of various remedial prescriptions required of her. Respondent attributed most of her difficulties to a personality clash with Dr. Hack and to Dr. Hack's calling Respondent to her office on twelve occasions during the 1983-1984 school year to discuss Respondent's problems. In light of so many unacceptable evaluations from so many observers, Respondent's analysis is rejected. While testifying concerning her reading groups, Respondent demonstrated a lack of understanding of the threefold rotating group concept based on individual student assessments by stating that she had created a fourth group for four new Nicaraguan students who spoke no English merely because they entered her class in the middle of the year and that she had created the fourth group on the theory that the new students would have to start with the first work book in the first grade series. Respondent has had admitted in evidence her grade book for the 1983- 1984 term. It does not in every instance corroborate Petitioner's witnesses' testimony. It evidences at least one weekly grade in each subject but each subject is on a different page. This finding does not, however, significantly diminish or impugn the credibility of a number of Petitioner's witnesses who observed that Respondent kept insufficient grades. In making this determination considerable weight is attached to Respondent's own testimony that she chose to record only one weekly grade instead of recording all test and progress scores by date of the item graded. Her voluntary election to use one weekly grade per subject over grades on all items falls short of the prescription assigned to her. Respondent maintained that evaluations of her performance are clouded by the evaluators' failure to take into account the many problems inherent in anyone educating the Chapter One child. This premise is not accepted. Six of other Kinloch Park Elementary teachers of larger Chapter One first grade classes managed adequately in the 1983-1984 term. Mrs. Lucy Williams, Respondent's witness, testified that it should be easier to teach Chapter One students because there are less subjects and fewer students in classes under such a program. Dr. Gray, Petitioner's Executive Director of its Division of Standards, testified by way of expert opinion that he had considered transferring Respondent to a non-Chapter One school but decided against it because the nature of the assessment system used by Dade County is a measurement of basic teaching skills and is not a measurement of only specialized skills for Chapter One classes. Petitioner did not offer Respondent the opportunity to transfer to a different (Non- Chapter One) type of class. Dr. Patrick Gray further testified that in his opinion, Respondent's first grade class in 1983-1984 was deprived of a minimal educational experience. This opinion is accepted over Respondent's assertion that a promotion of the majority of her class to second grade demonstrates her competency as a teacher. Respondent's premise is rejected in part upon Dr. Hack's testimony that even the students' Stanford Achievement Test scores would not give an accurate picture of what Respondent had successfully taught because these scores measure only all accumulated knowledge from all sources throughout broad fields of knowledge up to a specific time in each child's life. The witnesses who testified for Petitioner established the Respondent was unable to properly teach the Chapter One students.
Recommendation Upon the foregoing findings of fact and conclusion of law, it is RECOMMENDED that a Final Order be entered ratifying Respondent's dismissal without pay and denying any claims for back-pay and benefits. DONE and ORDERED this 17th day of December, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1985.
The Issue The issue posed for decision herein is whether or not the Respondent, Alfreda Grady, should be terminated from her employment as an instructional employee with the Broward County school system.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, post-hearing memoranda and the entire record compiled herein, I hereby make the following relevant findings of fact. By its six count Petition for Dismissal, Petitioner, through the person of its Superintendent of Schools, William T. McFatter, seeks to uphold its recommendation that Respondent, Alfreda Grady, be dismissed from employment in the Broward County school system. Respondent, Alfreda Grady, was an instructional employee at the School Board of Broward County until she was suspended with pay from her duties at the close of the workday on January 27, 1983. Respondent holds a continuing contract of employment and holds teaching certificates in both guidance and elementary education. During the course of the 1982-83 school year, Respondent was assigned to the position of guidance counselor at Attucks Middle School. This assignment was made by Mr. Thomas Wilson, Assistant to the south area Superintendent of the Broward County School Board. Ms. Grady was later assigned to teach sixth grade orientation and social studies. On January 27, 1983, Respondent was placed on emergency suspension and a PETITION FOR DISMISSAL from the Broward County school system was filed based on charges of incompetency, misconduct in office, immorality and gross insubordination. A request was made for a formal evidentiary hearing pursuant to Chapter 120.57(1), Florida Statutes. The matter was thereafter assigned to the undersigned hearing officer to conduct the instant hearing. On August 19, 1982, Respondent was assigned the position of guidance counselor at Attucks Middle School. Prior to this assignment, the position of guidance counselor had been assigned to Ms. Ricci Mandell, a teacher previously employed at Attucks. This assignment was made by Taft Green, principal at Attucks Middle School. Both Ms. Grady and Ms. Mandell were retained in the Guidance Department. Approximately two weeks into the school year, Respondent was assigned to teach one sixth grade orientation class. It is not unusual for a teacher to be assigned teaching duties in more than one subject area. (TR Volume 1, p. 193) By letter dated September 1, 1982, Mr. Green informed Respondent that she would begin teaching the orientation class on September 7, 1982. Respondent was also informed by Mr. Green that Ms. Friedman, a reading teacher at Attucks, would supply the necessary material and a course syllabus. Ms. Friedman had previously taught the orientation course during the 1981-82 school year. Respondent was advised that principal Green and the other instructional employees were available to assist her, as needed. Although Respondent never contacted Ms. Friedman for either assistance or to obtain the material, Ms. Friedman supplied the Respondent with a variety of materials to be used in teaching the orientation course including the course guide for middle school orientation and two instructional television books. (TR Volume 1, p. 166) Respondent refused to teach the orientation course. The class was used as either a study hall or the students watched programs such as "The Today Show" and "Good Morning America." On September 15, 1982, Respondent was assigned to teach two sixth grade social studies classes. A memo reflecting this assignment was sent both to Respondent and Ms. Mandell, dividing the guidance position between them and assigning them each three classes. (Petitioner's Exhibit P) Mr. Green divided the counselor duties between Respondent and Ms. Mandell based on budgetary considerations. That is, Attucks could not afford three guidance counselors and instead of terminating one instructional employee, the guidance counselor assignments were divided. (TP Volume 1, pp. 204 - 205) On November 3, 1982, Mr. Green began, via a memo, to change Respondent from a guidance position to a teaching position reciting in the memo that the change was based on a report from Rod Sasse, an educational guidance specialist for the Petitioner. Mr. Sasse conducted a study of the Attucks Guidance Department and determined that the Department needed to be restructured. He determined that two full-time counselors were more effective than one full-time and two part- time guidance counselors. Thus, Respondent was assigned a teaching position without any counseling duties. Respondent has refused to perform her assigned duties by Mr. Taft Green citing, inter alia, that the course materials provided her were inadequate or incomplete; that she was not educationally trained and therefore unqualified to teach the assigned duties; that she received no help or assistance from other instructional employees at Attucks and that she was not interested in taking the needed steps to either become qualified or otherwise competent to teach the assigned social studies and orientation classes. Prior to her November 10, 1982 assignment by principal Taft Green, Respondent was afforded one (1) week to prepare for the assigned classes. Additionally, she was given two TDA's (temporary duty assignments) to prepare for the social studies classes. Additionally, Respondent received a course syllabus and other material from other faculty and staff and offers of help from supervisory employees. (Testimony of Green; Carole Fischer, Social Studies Department Head; Mark Thomas, author of the course guide for middle school orientation and Dr. Benjamin Stephenson, Associate Superintendent for Personnel) Respondent made repeated statements, oral and written, to students, other instructional employees, supervisors, principal Green and the press evidencing her lack of interest in performing the assigned duties of teaching social studies and/or orientation. Respondent also cited as one of the reasons of her inability to teach the assigned classes was due to the fact that her students were not functioning at the same level of achievement and therefore it was impossible for her to teach students who are functioning at different progress levels. It is hereby found that it is indeed normal for students to function at varying progress levels and that teachers who are at all interested in performing the duties of an instructional employee, readily adjust to the varying progress levels of students and welcome the challenge of such an adjustment. As stated, Respondent repeatedly refused to perform her assigned duties as an instructional employee for the orientation and social studies classes. Based on this refusal to teach, Respondent assigned 148 out of 150 students a grade of incomplete or "I." Respondent was repeatedly directed to provide grades for her students by principal Green including written demands on January 19, 20, 21 and 25, 1983. On the last two demands on January 21 and 25, 1983, Respondent was further advised that her failure to assign grades to students would be regarded as gross insubordination. Respondent would not and, in fact, refused to teach her students any of the subject areas to which she was assigned by principal Taft Green. A typical day spent in the Respondent's classroom consisted primarily of the students either performing independent work which usually was in the form of preparing for other classes or doing homework which was assigned by other instructional staff or in the case of the orientation class, students would watch programs such as "Good Morning America" and "The Today Show." Respondent performed some minimal teaching including map and globe assignments. However, in the normal day, Respondent would permit students to perform either independent work or repeatedly view film strips. As a result of such repetition, students became bored. A number of Respondent's students expressed a desire to learn skills in the social studies classes which they were attending. It is also found that the Respondent's effectiveness as a teacher has been severely damaged due to the wide notoriety that this case has received, the public statements and/or admissions by the Respondent denoting her lack of interest in teaching the assigned classes and the expressed concern of other staff and parents concerned about entrusting their children to Respondent's class in view of her admitted lack of care and disregard for the educational and social welfare of the students in her class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Petitioner, School Board of Broward County, enter a Final Order dismissing the Respondent, Alfreda Grady, from employment with the Broward County school system. RECOMMENDED this 17th day of November, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1983.
Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher on an annual contract basis. Respondent first began working for Petitioner in February 1987, as an elementary teacher at Westview Elementary School. She taught at Westview Elementary School from February 1987 to the end of the 1986-87 school year and at Miami Park Elementary School during the 1987-88 school year. Both Westview Elementary School and Miami Park Elementary School are public school in the Dade County School District. For the 1988-89 school year, Respondent was assigned to teach a first grade class at Westview Elementary School. At the time of the final hearing, Respondent was 29 years of age. Respondent had received training as to Petitioner's disciplinary policies. She was aware of Petitioner's general disciplinary policies and the specific disciplinary procedures in place for Westview Elementary. During the 1988-89 school year there was in place at Westview Elementary an assertive discipline policy which was designed to discipline students without the use of physical punishment and which prohibited the use of physical force by teachers in the discipline of students. Teachers were instructed to remove disruptive students from the classroom by referring them to the administration office. If a student would not willingly go to the administration office, the teachers were to summon an administrator to the classroom to take charge of the disruptive student. In Respondent's classroom at Westview Elementary there was a coat closet that had hooks and shelves for storage. This closet was left without light when the two doors to this closet were closed. S.W., D.C., and D.W. were, during the 1988-89 school year, first grade students in Respondent's class at Westview Elementary. From the beginning of the 1988-89 school year, Respondent disciplined S.W., D.C., and D.W., individually, by placing each of them at various times in the coat closet and by then closing the two doors to the closet. On each occasion, the respective student was left in darkness. Respondent administered this punishment to S.W., a student Respondent characterized as having emotional problems, on seven separate occasions. Respondent administered this punishment to D.C. on at least one occasion and to D.W. on more than one occasion. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. During the 1988-89 school year, D.N. and S.M. were first grade students at Westview Elementary School who were assigned to Ms. Ortega's class. On February 14, 1989, Respondent observed D.N. and S.M. fighting while returning to their class from lunch. Ms. Holt, a substitute teacher temporarily assigned to that class while Ms. Ortega was on maternity leave, was the teacher in charge of D.N. and S.M. Respondent did not think that Ms. Holt could manage D.N. and S.M. Instead of referring the two students to the administration office, Respondent, with the permission of Ms. Holt, took D.N. and S.M. to Respondent's classroom to discipline the two students. Respondent had not been asked to assist Ms. Holt in this fashion. Respondent placed D.N. and S.M. in separate corners of the room and instructed them to be quiet. While Respondent attempted to teach her class, D.N. and S.M. continued to misbehave. D.N. began playing with a fire extinguisher and S.M. began writing and drawing on a chalkboard. To discipline D.N., Respondent tied his hands behind his back with a red hair ribbon. While he was still tied, Respondent placed the end of a broom handle under D.N.'s chin, where it remained propped until it fell to the floor. Respondent then placed the fire-extinguisher into D.N.'s tied hands to show him that the heavy fire extinguisher could harm him if it fell on him. These actions took place in Respondent's classroom in the presence of Respondent's class. Respondent frightened D.N. and almost caused him to cry in front of his fellow students. Respondent exposed D.N. to embarrassment and subjected him to ridicule from his fellow students. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. To discipline S.M., Respondent placed him in the coat closet. Respondent closed one of the doors and threatened to close the other door if S.M. did not remain still and quiet. After S.M. did not obey her instructions, Respondent closed the other door of the closet which left the closet without light. While S.M. was in the coat closet, Respondent remained stationed by the second door and continued instructing her class. After a brief period of time, Respondent let S.M. out of the dark closet. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies. D.N. and S.M. remained in Respondent's class until a student sent by Ms. Holt summoned them to the library to participate with the rest of their class in vision and hearing testing. D.N. had to walk from Respondent's class to the library with his hands tied behind his back. This exposed D.N. to further embarrassment and ridicule. Ms. Holt untied D.N.'s hands in the library in the presence of other students. The ribbon which Respondent had used to bind D.N.'s hands behind his back left red marks on D.N.'s wrists. Ms. Holt immediately reported the incident to the principal. During the course of its investigation into the incidents involving D.N. and S.M., Petitioner learned of the prior incidents during which S.W., D.C., and D.W. were punished by being placed in the closet. Following the investigation of the Respondent's disciplinary methods, Petitioner suspended her without pay on May 17, 1989, and instituted proceedings to terminate her annual contract. Respondent timely demanded a formal hearing of the matter and this proceeding followed. The progressive discipline approach used by Petitioner in some cases involving teachers who violate disciplinary procedures usually requires that a reprimand be imposed for the first offense. Subsequent violations by the teacher would result in the imposition of progressively severe sanctions, culminating in dismissal. The progressive discipline approach is not used in a case involving a serious breach of policy such as where an established pattern of violations is established. Respondent's repeated practice of placing students in a darkened closet, which began at the beginning of the school year and continued into February when the incident involving D.N. and S.M. occurred, established a patterned breach of disciplinary procedure. Respondent's effectiveness as a teacher in the school became impaired because of her repeated breaches of discipline policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Katherine R. Santos guilty of misconduct, which affirms her suspension without pay, and which terminates her annual contract. DONE AND ENTERED this 15th day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3064 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1 and 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 5 and 6 of the Recommended Order. The students, who are identified by initials, are described as being first grade students rather than as being a specific age. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in part by paragraphs 5 and 9 of the Recommended Order. The proposed findings of fact relating to Respondent's having struck a student with a ruler and having twisted the ears and arms of other students are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 6 are rejected as being contrary to the weight of the evidence. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in material part by paragraphs 8, 9, and 10 of the Recommended Order. The proposed findings of fact in paragraph 9 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 12 of the Recommended Order. The proposed findings of fact in paragraphs 16 and 17 are rejected as being the recitation of testimony and as being subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraphs 6 and 7 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraphs 7 and 9 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraphs 7 and 8 of the Recommended Order. The proposed finding that the ribbon was tied loosely is rejected because of the marks left on the student's wrists. The proposed findings of fact in paragraph 6 are rejected as being the recitation of testimony and as being subordinate to the findings made. The proposed findings of fact in paragraph 7 are rejected as being conclusions and as not being findings of fact. The proposed findings of fact in paragraph 8 are rejected. A finding that none of the students were struck or hit is rejected as being unnecessary to the conclusions reached. A finding that none of the students were abused is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence. The greater weight of the evidence is that Respondent had been advised as to Petitioner's disciplinary policies and that she knew or should have known that the forms of punishment she was using violated those policies. The proposed finding of fact in paragraph 10 that the discipline inflicted on these students does not amount to corporal punishment is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence. The remaining proposed findings of fact in paragraph 10 are adopted in material part. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board of Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard, Suite 215 Miami, Florida 33132
The Issue The issued posed herein is whether or not the Respondent School Board of Dade County's reassignment of Petitioner/student, Valerie Patrice McDonald, from Miami Springs Junior High School to the Jan Mann Opportunity School North, should be upheld.
Findings Of Fact Valerie Patrice McDonald, Petitioner, is a student enrolled in the Dade County Public School System. Petitioner was enrolled in Miami springs Junior High School in August of 1978. Petitioner's guidance records indicates no serious behavioral problems and that her attendance at school is excellent. Her academic progress has been a steady B and C average since enrolling in the public school system. Petitioner was referred to the guidance office of Miami Springs Junior High School on numerous occasions during the 1978-1979 school year for various disciplinary problems. For example, on September 25, 1978, Petitioner was referred by her mathematics teacher for playing and not working in class. For this referral, she was counseled. Again, on October 25, 1978, she was referred by the social studies teacher for "being involved in a classroom disturbance with another student wherein pencils were broken, books were thrown out the window and the students began kicking each other. A parent conference was requested." On November 3, 1978, Petitioner was referred by the physical education teacher for "striking another student in the locker room for no apparent reason. Petitioner counseled and warned by principal." Again, on November 16, 1978, Petitioner was counseled for being loud and for refusing to remain quiet when requested. Petitioner was placed outside the classroom door by her English teacher. This pattern of disruptive behavior continued through March of 1979 when Petitioner was involved in a fire incident in the girl's physical education locker room. Based on this incident and the culmination of the prior behavioral problems, an administrative placement was requested by the school board for Petitioner to be assigned to the Opportunity School, which request was approved on April 3, 1979. Since that time, Petitioner has been attending the Jan Mann Opportunity School. Charles W. Bales, principal of Miami Springs Junior High School, testified that the assignment of Petitioner to the Opportunity School is beneficial inasmuch as it permits the student to utilize the benefits of smaller class settings, better individualized instruction; smaller class enrollments; better counselor to pupil ratio and basic educational program which enables a "disruptive" student to succeed in an individualized instructional setting. (TR 18-20) Testimony also reveals that the Opportunity School has a full-time visiting teacher who serves as the contact person for resolving any individual problems such as attendance or other behavioral problems for students at the Opportunity School. Ms. Helen Wilson, Petitioner's mother, requested that Principal Bales reassign Petitioner from three of her teachers due to matters which Ms. Wilson considered to be personal in nature. Principal Bales explained that there were approximately 1500 students at the school and that it was impossible for him to reassign students when personal differences of opinions exist between their teachers. Additionally, Principal Bales testified that students reassigned to the Opportunity School may request a transfer back to the regular school program following the close of the grading periods. Inasmuch as Petitioner has been attending the Jan Mann Opportunity School since March, 1979, it appears that she will be eligible for a reassignment to the regular school program provided that her grades, attendance, and behavioral pattern is such that she can function normally in the regular school program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's petition filed herein be dismissed. Additionally, it is requested that the Respondent give full consideration to Petitioner's request that she be reassigned to the regular school program when such a request is properly filed with the school board. RECOMMENDED this 27th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1979. COPIES FURNISHED: Ms. Helen Wilson 3311 North West 52 Street Miami, Florida 33142 Michael J. Neimand, Esquire Dade County School Board Lindsey Hopkins Building Miami, Florida 33132
The Issue Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, the Respondent, James P. Walsworth, caused to be prepared and submitted, documentation, including but not limited to, State Board of Education forms ESE- 269 and ESE-135, which subsequently, qualified Horizon Elementary School for additional FTE funding for students classified as "gifted" in the fourth and fifth grades, when, during the 1975-76 school year, as Principal of Horizon Elementary School, the Respondent, James P. Walsworth, failed to provide and/or implement an appropriate program for those gifted students, in accordance with the "1975 District Procedures for Providing Special Education for Exceptional Students.", all as alleged in the first substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth served as Principal of Horizon Elementary School, he caused two children, to wit: Warren Moody and Johnny Knight to be placed in the Educable Mentally Handicapped (EMH) program at Horizon Elementary School, and these two children were not certified for such a program, thus violating s230.23(4)(m) Subsections 1 - 7, F.S., Rules of the State Board of Education of Florida, policies of the School Board of Broward County, Florida, and the "1975 District Procedures for Providing Special Education for Exceptional Students.", all as alleged in the second substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth, served as Principal of Horizon Elementary School, Respondent, James P. Walsworth, caused to be prepared and submitted documentation concerning the Special Learning Disability (SLD) students wherein, of the 79 students classified by the Respondent, James P. Walsworth, as (SLD), only 49 were certified; thereby violating the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m) Subsections 1 - 7, F.S., all as alleged in the third substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth served as Principal of Horizon Elementary School, he prepared and submitted documentation concerning one child classified as emotionally disturbed, without proper certification; and after having designated child for additional FTE funding, the Respondent, James P. Walsworth then failed to provide and/or implement an appropriate program for said child in violation of the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m), subsections 1 - 7, F.S., all as alleged in the fourth substantive paragraph of the complaint letter.
Findings Of Fact The Respondent, James P. Walsworth, became Principal of Horizon Elementary School at the time of its opening in the fall of 1973, and has remained the Principal of that school, except for the period of his suspension between August 19, 1976 and November 18, 1976. Horizon Elementary School is a part of the school system of Broward County, Florida and the Respondent, James P. Walsworth, is an employee of the School Board of Broward County, Florida. During the pendency of the Respondent's employment at Horizon Elementary School, there was in effect certain District Procedures of the School Board of Broward County, Florida, pertaining to the education of exceptional children. The first of these were procedures for 1973-74 and appears as Petitioner's Exhibit #12, admitted into evidence. The second document represents procedures for the school year 1974-75 and appears as Petitioner's Exhibit #13, admitted into evidence. The last document is for the year 1975-76 and is found in Petitioner's Exhibit #14, admitted into evidence. All the aforementioned procedures in Petitioner's Exhibits #12 - #14, were enacted by the School Board of Broward County, Florida. In the school year 1975-76, the Respondent, James P. Walsworth, requested and received funding for seven students in the fourth grade and six students in the fifth grade, he claimed to be "gifted" students for funding purposes. This request for funding was placed in the October, 1975, funding count and the February, 1976, funding count. It is the October 1975, count that establishes the right to funding. Petitioner's Exhibits #19 and #20, admitted into evidence show the funding request for those gifted students. Petitioner's Exhibit #28, admitted into evidence, shows the total amount of FTE monies received in the gifted program at Horizon Elementary School. (The initials FTE stand for Full Time Equivalence). In the year 1975-76 the six fourth grade students which had been placed in the gifted program were taught by Terence Byrnes. Mr. Byrnes had a total class of 27 students comprised of third and fourth grade students. The gifted students were placed with seven other students for purposes of reading instruction. Terence Byrnes is not certain of any particular instruction about the gifted program given by Walsworth at the commencement of the school year. He only understood that he was being designated as the gifted teacher for the fourth grade students who had been designated gifted and had FTE funding claimed in their behalf. Mr. Byrnes did not buy any special materials for those six gifted students, per se, but selected materials which he felt the average fourth grader could not do because, "they would not know how." The materials selected were taken from the media center and the curriculum for the gifted was constituted of math, science, social studies and reading. The six gifted students in his class were not segregated from the other members of the class at any time during the instruction period in a physical sense. Those students, together with the other members of their group who were identified as students of solid average to above average were given open ended assignments, by that, all students did not have to complete all parts. Mr. Byrnes indicated that the emphasis on the program for the gifted and others was independent study where the student would have to think. He further stated that these gifted students and other members of their group were under his supervision. Some of the items of study were the use of globes, maps, film strips and human anatomy. The anatomy subject included the examination of a skeleton model, placing x-rays of the human body over light fixtures as a supplement to the study of the skeleton model and examination of the bones of animals to show the action of the sockets of those bones. The students then used tracing paper to outline the bodies of their fellow students and to place the skeleton and organs of the human body in the outline tracing. Mr. Walsworth commented that this skeleton model had been bought for sixth and seventh grade students. Approximately one hour per day was spent on the gifted program. Warren Smith was the teacher of the fifth grade students who had been labeled as "gifted" and had funds requested for their program. There were seven of these students who were placed with fifteen or sixteen other students in the top reading group. The other students were indicated to be academically talented. The gifted students were not physically separated from the other students. The type of assignments for the gifted and academically talented were open ended assignments and materials provided were materials provided for the gifted and academically talented. Mr. Smith remembers the instructions from Mr. Walsworth at the beginning of the school year 1975-76 as being, "to provide enrichment materials for the gifted," but Mr. Walsworth did not indicate what that program would consist of. The fifth grade "gifted" students read certain stories and wrote sequels to those stories. Some of the members produced a play and others wrote scripts and productions for television. The persons involved in the reading and writing assignments were "gifted" students; however, it was not clear what the involvement of the academically talented students were in this program. In addition, there was a clay and rock model in the curriculum area of a social studies unit on Western Movement and this program was an appropriate program for "gifted" students. Again it is not clear whether the "gifted" students alone worked on the Western Movement project, as opposed to the" gifted" and academically talented. During the school year 1975-76, Virginia Barker, the art teacher at Horizon Elementary School taught certain fourth and fifth grade students to weave on special looms, to do needlepoint on special canvas and string art, which she felt to be above the level of children in these grades. This work was done as independent study before and after school. Mrs. Barker indicated that these students had been identified to her as being gifted students, but her testimony was unclear on the question of whether those persons involved in this independent study would include children who were talented, but not necessarily identified and funded as "gifted" students. During the school year 1975-76 the students Warren Moody and Johnny Knight were placed and attended a program for Educable Mentally Handicapped (EMH) at Horizon Elementary School. Information on the child, Warren Moody, may be found in Petitioner's Exhibit #17 and Respondent's Exhibit #3, both admitted into evidence. Information on the child, Johnny Knight, may be found in Petitioner's Exhibit #16 and Respondent's Exhibit #5, both admitted into evidence. On October 1, 1973, the student, Warren Moody was given certain testing and a psychological report was rendered by Dr. Halcyon H. Carroll. The results of this testing and the conclusions of that examiner may be found in Petitioner's Exhibit #17 admitted into evidence. Dr. Carroll found that Moody did not qualify for a program for the Educable Mentally Handicapped (EMH). This conclusion and the remainder of the facts in that report are accepted as being the determination reached by Dr. Carroll. Subsequent to Dr. Carroll's report, a decision was made to place Warren Moody in the (EMH) program at Horizon Elementary. This decision was based upon a committee or staffing conference held between the teachers and school psychologist, Dr. Robert Ginsberg, conducted in the fall of 1973. Dr. Robert Ginsberg was the psychologist assigned to the Horizon Elementary School. Dr. Ginsberg made his decision notwithstanding the determination of Dr. Carroll. Dr. Ginsberg's decision was made in view of the comments of the teacher that the student was not performing at a reasonable level and in view of his own observations of the student; however, Dr. Ginsberg did not conduct any further testing on the student beyond the testing rendered by Dr. Carroll. The committee report and other matters pertaining to the October, 1973, staffing at Horizon Elementary School, at which time Warren Moody was placed, are unavailable. The record is not clear on the question of whether or not Dr. Ginsberg rendered a written psychological report in addition to the committee findings on the student Warren Moody, who was staffed in the fall of 1973. After Warren Moody was placed in the EMH program in the fall of 1973, he continued in the program through the end of the school year 1975-76. At all times his participation was in the Horizon Elementary School. In the spring of 1976, Queen M. Sampson, a school psychologist for the Broward County School System tested Moody and rendered a psychological report. Again this report is a part of Petitioner's Exhibit #17, admitted into evidence. In the report, Queen Sampson indicated that Warren Moody did not qualify for (EMH) in terms of testing and recommended return of the student to the regular classroom. On June 1, 1976, the student assessment and review committee met at Horizon Elementary School and concluded that the student should be returned to regular class. This report was entered at the end of the 1975-76 school year, and is part of Petitioner's Exhibit #17. In the school year 1972-73, the student, Johnny Knight, had been attending Royal Palm Elementary School. While attending that school certain tests were made of the student's ability to determine appropriate academic placement. Subsequent to the tests a report was rendered under the signature of Dr. Robert Ginsberg and co-signed by Dr. James R. Fisher, the Director of Psychological Services, in Broward County, Florida. The conclusion of Dr. Ginsberg was that the student did not qualify for (EMH) placement at that time, but did require much retraining and remedial help in all perceptual areas. A copy of this written report may be found in Petitioner's Exhibit #16 and the report is accepted as being an accurate depiction of Dr. Ginsberg's findings. The student was transferred to Horizon Elementary in the fall of 1973, for the school year 1973-74. After discussion with the teachers at the fall staffing for placement of students, determining that the student was not working well in the normal class setting, observing the student and reviewing the report of April, 1973, Dr. Ginsberg concluded that the student should be placed in (EMH). No written psychological report was rendered and no further tests were conducted by Dr. Ginsberg in the fall staffing committee conference. The student Johnny Knight remained in the program from the school year 1973-74 through the school year 1975-76, at which time, on June 8, 1976, per the re-evaluation committee's recommendation, he was removed from the (EMH) program. The placement of the students, Warren Moody and Johnny Knight, was for a period of three years from the fall of 1973 and was not in violation of any statutes, rules or procedures. The term, three years, means three school years. Acting on a complaint filed by John Georgacopoulos, school guidance counselor for Horizon Elementary School in the years 1974-75 and 1975-76, the Superintendent of Schools of the School Board of Broward County, Florida, ordered an audit of the Horizon Elementary records. One of the aspects of the audit was to examine certain folders on the specific Learning Disability students who were enrolled in the year 1975-76. These folders were folders that were found in the main office of the school. The audit report which is Petitioner's Exhibit #1, admitted into evidence, in part, states that 79 folders were examined in the course of the audit. In addition there was testimony by one of the auditors, that a computer print-out contained the names of those students that were found in the Specific Learning Disability program (SLD). Apparently the auditor was referring to that computer print-out which is Petitioner's Exhibit #8, admitted into evidence. That exhibit shows a color code for certain categories and (SLD) is shown in yellow. The number of (SLD) students in the year 1975-76 was determined by the auditors on the basis of the examination of the file folders in the main office and the computer print-out and this gave them the number 79. When the charge was made, it alleged 74 students were in the (SLD) program in the 1975-76 school year, but was subsequently amended during the course of the hearing to reflect the number 79, which appeared in the audit report. In fact, FTE funding in the (SLD) program of Horizon Elementary was claimed for 71 students in the October 27 - 31, 1975, count and for 74 students in the February 23 - 27, 1976, count as reflected in Petitioner's Exhibit #19, admitted into evidence. Therefore, funding would have been received for 71 students in October, 1975, in the (SLD) program. Moreover, testimony established that it was this October count which set up the process for the actual receipt of funds for such program. Of the 79 students claimed to be enrolled in the 1975-76 school year, in the category (SLD), 47 of those students whose files were examined were felt to be properly certified. Certification to the audit members meant that a school psychologist had indicated the propriety of placing that student in the (SLD) program in years prior to 1975-76, and after 1975-76 that a form known as B-1 had to be signed by the Director of Exceptional Student Education or his designee to have certification. This word certified comes from the audit summary table found in the audit, Petitioner's Exhibit #1. The original charge claimed 47 students of the (SLD) program were certified. This number was amended to read 49 as certified, such amendment being made in the course of the hearing. In addition to the audit report, there was prepared a tally sheet. This tally sheet was the product of the three auditors and pertained to the (SLD) students. The tally sheet is Petitioner's Exhibit #15, admitted into evidence. It shows 79 names, which are the names of the file folders examined in the audit. It has certain columns pertaining to items being sought, one of which columns is the aforementioned certification. Looking at this exhibit it is determined that there are 30 names of students, whom the auditors did not locate data for on the column labeled certification. Those 30 names are found in a separate part of Petitioner's Exhibit #15, In determining what data existed, the auditors had asked the Respondent to produce his files, they had looked at files in the main office and in the Specific Learning Disability room, and at the Diagnostic Center for the Exceptional Education Program in Broward County. Their examination of the Diagnostic Center files was only on a random basis. They had also spoken to the (SLD) teachers at Horizon Elementary in a general way, but not as to the specific names of students that they could not find data for. The auditors did not look in the cumulative folders, which were found with the homeroom teachers of the 30 (SLD) students. No document was offered which shows which if any of the 79 students named on the tally sheet were part of the 71 students for whom FTE funding in the (SLD) program was claimed for in the October 27 - 31, 1975, request, nor was such documentation shown for which if any of the 79 students on the tally sheet were claimed as part of the 74 students who were involved in the FTE funding count of February 23 - 27, 1976. Therefore, it is not known specifically which of the students were having funding claimed for them in October, 1975 and February, 1976. There was a great deal of testimony in the case concerning the referral process, testing, psychological evaluation, and staffing of those students in the (SLD) program at Horizon Elementary School. This discussion involved allegations and counter allegations about the conduct of the prescribed process, as to the compliance with procedures and the quality of that compliance, and the disposition of the evidence showing qualification of the (SLD) students for such a program, once placement had been made and funding requested. Essentially, the Petitioner was trying to establish, through its witnesses, that procedures were not followed in placing (SLD) students for the years 1973-74 through 1975-76 either in fact or in the quality of compliance. The Respondent, through its witnesses, countered that compliance had been achieved and that the placement of those students in the (SLD) program was correct. Within this testimony, there are claims on both sides that files either did not exist or certain data in those files had been removed. Some evidence which was offered to establish that testing was done on those 30 students whose names appear on Petitioner's Exhibit #15, will be found in Respondent's Exhibit #18 - #22, admitted into evidence. These Respondent's exhibits show materials taken from the files of the named students and compilation of tests scores kept by the (SLD) teachers, Bonnie Kirkham and Pat Sanders. These items were not seen by the audit team. Some information was in the possession of the (SLD) teachers based on notes of test scores that were take-offs of the original test booklets and documents, with the exception of one file which was mistakenly kept in the (SLD) teachers room, and the balance of the data was taken from the cumulative folders of the students, that had been kept in the homeroom teachers' rooms, which were not examined by the auditors. Other data may be found in Petitioner's Exhibits 36 - 38 which are psychological reports written by Dr. James R. Fisher, a school psychologist with the Broward County School System. These reports pertain to certain of the 30 students whom he recommended to be returned to regular class, and some of which were left in the (SLD) program from January, 1976 through the end of the school year to avoid adjustment problems. Although the psychological reports are dated September, 1975, these reports were not sent to Horizon Elementary School until January, 1976. In addition the attorney for the Petitioner after reviewing the evidence, concedes that the children, Jeanine O'Hara, Wayne Martin, Suzanne Cain, Karen Treese, Alderto Guzman, Laura Natzke and Kieth Franklin were tested and found eligible for placement in (SLD). After entertaining considerable testimony on the procedures and the whereabouts of certain data within the files of the 30 (SLD) students under discussion, and after reviewing the evidence offered to show the existence of data about the students, the undersigned is unable to conclude what the actual facts are, and for that reason it has not been shown that the procedures for placement and claiming funding were followed or not. However, there is strong evidence to show that the procedures were followed for placing the thirty (SLD) students, as shown by Respondent's Exhibits #18 - #22. On October 27, 1975, the student Anthony Buffone was tested by a school psychologist in the Broward County School System. This psychologist was Bob Lieberman, and Mr. Lieberman rendered a written psychological report, which indicated that Anthony Buffone should be placed in a program for Emotionally Disturbed children. A copy of this report may be found in Petitioner's Exhibit #18, admitted into evidence. This child was staffed and proper placement effected, in accordance with the existing law and procedures. The activity of placement transpired in the fall of 1975. The child was attending Horizon Elementary School in the school year 1975-76. The program provided for Anthony Buffone in that school year was to have him attend regular class part of the day and to spend approximately two hours a day with John Georgacopoulos, the school guidance counselor. Georgacopoulos was to help Anthony Buffone with academics, to assist in behavioral modification and to improve the student's self concept. This program was provided as needed, and this need turned out to be approximately two hours a day. In addition, the Respondent worked with the student in terms of counseling. The student spent some time in the (SLD) program but because of the disruptive nature of his conduct, was removed from that program. His attendance in (SLD) was from the beginning of January, 1976 through the spring, 1976. He was removed from the (SLD) program at the request of the (SLD) teacher. Mr. Georgacopoulos the instructor, had a BA Degree in psychology from the University of Oklahoma and a Master's Degree in Institutional Guidance and Counseling from Oklahoma City University. In addition Mr. Georgacopoulos had been approved by the Broward County School Board to do psychometric testing. Prior to coming to the Broward County School System in 1969, he had done work at the Wagon Wheel School in Oklahoma, in the field of guidance and counseling. He was not a certified psychologist, certified with the State of Florida. The Respondent recognized that the student Anthony Buffone, would have been better placed at the Castle Hill School which had a more comprehensive program for the Emotionally Disturbed, but the mother of the child did not wish this placement since it would work a hardship in transporting the child to the school, and would place the child in a location that was inconvenient to the parent.
Recommendation It is recommended that the Respondent, James P. Walsworth, be relieved of further responsibility in answering to these charges and that back pay and other benefits that he may be entitled to, be forthcoming. DONE and ENTERED this 4th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John B. Di Chiara, Esquire Suite 1500, One Financial Plaza Ft. Lauderdale, Florida 33302 Emerson Allsworth, Esquire 1177 S.E. Third Avenue Ft. Lauderdale, Florida 33316 Mr. James E. Maurer Superintendent of Schools The School Board of Broward County Administration Offices 1320 S.W. Fourth Street Ft. Lauderdale, Florida 33312
The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Broward County School Board (School Board) is responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Meadowbrook Elementary School (Meadowbrook), Tropical Elementary School (Tropical), and Everglades Elementary School (Everglades)), and for otherwise providing public instruction to school-aged children in the county. For five years, beginning in 2004, Joseph Tamburino was the area coordinator of student services for the School Board's South Central Office (SCO), overseeing the activities of the office's five-person secretarial staff, as well as the approximately 70 "itinerant" school psychologists and school social workers assigned to work at schools within the SCO's service area. Among these schools were Meadowbrook, Tropical, and Everglades. Respondent has been employed by the School Board as a school social worker since September 2000. She presently holds a professional services contract. From 2004 until August 2009, Respondent worked out of the SCO under the immediate supervision of Mr. Tamburino. During this time, she never received less than a satisfactory annual performance appraisal from Mr. Tamburino; however, in the "comments" section of the last appraisal he gave Respondent (for the 2008-2009 school year), Mr. Tamburino did write, "Jessica should work on improving absenteeism and performance issues such as task completion, timelines and adhering to work hours." During the 2006-2007 school year, Mr. Tamburino "beg[a]n to have problems" with Respondent's being where she was supposed to be during the school day. These "problems" persisted, despite Mr. Tamburino's efforts to address them at meetings with Respondent and in written correspondence he sent her. Following the end of the 2006-2007 school year, Mr. Tamburino issued Respondent a "Letter of Reprimand," dated August 14, 2007, which read as follows: This correspondence is submitted as a formal reprimand for your failure to follow office procedures. This is the second occasion that I have had to meet with you regarding not being present at your assigned schools for the full workday. We met on February 1, 2007 because you were not in your assigned schools for the full workday (7.5 hours) over a period of five days. Furthermore, we met on June 1, 2007, because you were not in your assigned schools during the hours you were required to be present on May 4 and May 24, 2007. Know and understand that this behavior cannot and will not be tolerated by this administration. You are hereby directed from this point forward, to comply with all administrative directives. Failure to comply will result in further disciplinary action such as a referral to Professional Standards and the Special Investigative Unit, suspension or termination. Your signature evidences receipt of and an understanding of this document. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. Ten days after evidence of your knowledge of this correspondence, it will become public record. Respondent signed this "Letter of Reprimand" on August 14, 2007, signifying that she had "read and underst[ood] [its] contents." Less than four months later, Mr. Tamburino issued Respondent another "Letter of Reprimand," which was dated December 7, 2007, and read as follows: This letter is submitted as a formal reprimand for your continued failure to follow office procedure and falsification of records. On November 8, 2007 you were not in your assigned school for 7.5 hours. You called the South Central Student Services office and reported that you were leaving New River Middle School at 4:00 p.m. However, you were seen at a store at a shopping plaza at 3:00 p.m. Although you did not work a full day on November 8, 2007, you falsely reported to a Student Services secretary that you finished your workday after 7.5 hours. This is the second written reprimand that you have received within the last four months for failure to follow office procedures and falsification of records. This behavior cannot and will not be tolerated. You are directed to comply with office procedures, work your full 7.5 hour day, and sign in and out with accurate times. Failure to comply will result in further disciplinary action. Your signature evidences receipt of and an understanding of this document. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. Ten days after evidence of your knowledge of this correspondence, it will become public record. Respondent signed this "Letter of Reprimand" on December 17, 2007, signifying that she had "read and underst[ood] [its] contents." Respondent did not file a grievance "specifically challenging" either the August 14, 2007, "Letter of Reprimand," or the December 7, 2007, "Letter of Reprimand." On March 17, 2008, Dr. Tamburino sent a memorandum to Respondent, which read, in pertinent part, as follows: As you are aware, we have had two recent meetings that have included discussions of following office procedures, the provision of social work services and collaboration with the community liaison and other personnel. On February 1, 2008 we had a meeting with Jerrod Neal from BTU and Ellen Williams, the Social Work BTU Steward. We examined possible discrepancies between dates listed for home visits on a log at New River and your November mileage voucher. Although there were L-panel entries to verify the home visits, there was inconsistent documentation of the addresses on the mileage voucher. However, you decided to withdraw your request for mileage reimbursement. Suggestions to improve your work performance were discussed. These include the following: * * * - Specific time of the home visits, including leaving and returning to campus, need to be documented. During the 2008-2009 school year, Respondent was assigned to provide school social work services at three schools: Meadowbrook, Tropical, and Everglades. She was supposed to be at Meadowbrook on Mondays, Tropical on Wednesdays, and Everglades on Thursdays. On Tuesdays, she went to whichever of the three assigned schools "need[ed] [her]," and she also did "home visits." Fridays were designated as "office days." On these "office days," Respondent was expected to do "paperwork" that needed to be completed. Respondent was allowed to use office space at Meadowbrook as her "Friday office" instead of going to the SCO (which was farther from her residence than was Meadowbrook). Respondent missed a considerable amount of work during the 2008-2009 school year due to her daughter's, as well as her own, health-related issues, "exhaust[ing] her sick leave" before the year was half over. (By December, she "didn't have any sick days" left.) Respondent and the other school social workers and school psychologists working out of the SCO were required to notify the office's secretarial staff, by telephone (or in person, if at the SCO), of their whereabouts whenever they arrived at or left a work-related destination during the school day (Call In Office Procedure). It was the duty and routine practice of the secretarial staff, upon receiving such a call, to enter the information provided by the caller concerning the caller's location (as well as the date and time the call was received) on an "online call-in log" (Call Log) maintained by the SCO so as to have a record of these calls. The Call In Office Procedure and other "[o]ffice [p]rocedures" were discussed in a document entitled, "Office Procedures: 2008-2009 School Year," which Mr. Tamburino provided "[a]ll the South Central Office . . . [p]ersonnel," including Respondent, at the very beginning of the 2008-2009 school year. The document read, in pertinent part, as follows: Attendance is reported daily by Joyce [Doe] (social workers) . . . to the payroll department. You must call Joyce . . . prior to taking any leave (e.g., personal, sick, other.) You must call each day you are taking sick leave (unless otherwise arranged with the Area Coordinator [Mr. Tamburino]). Call the office twice daily, when you arrive at your location and before you leave for the day (for example, for most elementary schools by 7:30 AM, and 3:00 PM). You should call from a school telephone. If you do not call in, you may be considered absent. You are expected to be in your assigned school 7.5 hours (same work hours as the teachers). If you leave a school for another destination, be sure to inform personnel at school and one of the secretaries in our office. When you are at the Area Office, please be sure that our secretaries log you in. A schedule of team meetings is provided at the beginning of each year. Attendance at all scheduled team meetings is mandatory. A planning day is a 7.5 hour workday. * * * Mileage vouchers must be submitted within 30 days after the end of the month per the Superintendent. Use the exact mileage to schools listed in SCA mileage chart. Requests for more than one month may not be approved. * * * You must request and obtain an approved TDA [Temporary Duty Authorization] from the Area Coordinator when performing duties in a different location other than your regular assignment. TDA request forms should be completed 10 days prior to the workshop/event. Return to the office at least once a week to handle office duties. The Area Coordinator monitors the quality of your work and evaluates your performance at least annually. The Area Coordinator makes all school assignments. In addition to having to follow these SCO "[o]ffice [p]rocedures," Respondent and her fellow "itinerant" workers, when they were at their assigned schools, were "under [the] direction" of the school's principal and had to do what the principal "dictated." During the 2008-2009 school year, the principal of Meadowbrook "wanted her ['itinerant'] employees to sign in/sign out when they came on [and when they left] campus," and there was a "sign in/sign out" sheet posted at the school for "itinerant" employees to sign, date, and note their "time in" and "time out." Respondent "knew" of Meadowbrook's "sign in/sign out" "procedure," and routinely complied with it (when she was actually at the school that school year). Respondent was not present, and therefore did not "sign in," at Meadowbrook on any of the following dates: Friday, October 3, 2008; Friday, October 31, 2008; Friday, January 9, 2009; Friday, February 6, 2009; Friday, February 13, 2009; Friday, February 20, 2009; and Monday, February 23, 2009. Nonetheless, she telephonically reported to the SCO secretarial staff that she was at Meadowbrook on each of these days (as reflected by the entries made on the Call Log), obviously knowing this information to be false.4 February 4, 2009, was a Wednesday, the day Respondent was supposed to be at Tropical. On that day, Respondent telephoned the SCO secretarial staff at 8:05 a.m. to report she was at Tropical, and called back at 5:56 p.m. to advise that she was leaving the school (as reflected by the entries made on the Call Log). In fact, Respondent was not at Tropical during the school day on February 4, 2009.5 Her reporting otherwise was a knowingly-made false misrepresentation. March 20, 2009, was a Friday and thus an "office day" for Respondent. Respondent had made arrangements to attend a conference that day. In accordance with the "Office Procedures: 2008-2009 School Year" that Mr. Tamburino had handed out at the start of the school year, Respondent had "request[ed] [on February 25, 2009] and subsequently obtain[ed] [on March 16, 2009] an approved TDA" from Mr. Tamburino to go to the conference (instead of doing the work she was "regular[ly] assign[ed]"). Respondent, however, did not go to the March 20, 2009, conference.6 Nonetheless, at 8:40 a.m. on March 20, 2009, she falsely and deceptively reported to the SCO secretarial staff over the telephone that she was on her "temporary duty" assignment (at the conference). At no time that day did Respondent advise the SCO secretarial staff that she was at her regular "Friday office" location, Meadowbrook,7 or that she was leaving that location (to pick up her sick daughter at school, or for any other reason). Furthermore, Respondent's leave records reveal that she did not take any type of leave that day. (Had she taken leave to care for her sick daughter that day, it would had to have been unpaid leave because she had no paid leave time left.)8 To receive reimbursement for non-commuting "travel expenses [she claimed she incurred] in the performance of [her] official duties" as a school social worker (that is, for mileage in excess of the 22.6 miles from her home to her office (at Meadowbrook) and back, reimbursed at a rate of 55 cents per mile, plus parking and tolls), Respondent had to submit mileage vouchers (on School Board Form 3042, Revised 09/05) to Mr. Tamburino for his approval.9 Respondent certified, by her signature on the forms, that her "claim[s] [were] true and correct" and that the "expenses [claimed] were actually incurred by [her]." Among the mileage vouchers she submitted were those covering the months of January 2009 (January Voucher) and February 2009 (February Voucher). There were entries on both the January and February Vouchers that were inconsistent with what Respondent had telephonically reported to the SCO secretarial staff concerning her whereabouts on the dates for which these entries were made (as reflected by the entries made on the Call Log). On the January Voucher, for Tuesday, January 6, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, January 6, 2009, she had telephonically reported to the SCO secretarial staff that she was first at Meadowbrook, then at the SCO, and finally on a home visit. On the January Voucher, for Friday, January 9, under "Places Visited," Respondent put, "Home to Meadowbrook" (a trip of 0 "Net [Reimbursable] Miles"), "Meadowbrook to KCW [School Board headquarters]" (a trip of 5.3 "Net [Reimbursable] Miles"), "KCW to Everglades" (a trip of 17.7 "Net [Reimbursable] Miles"), and "Everglades to Home (a trip of 14.3 "Net [Reimbursable] Miles"); however, on the day in question, January 9, 2009, she had not reported to the SCO secretarial staff that she was at Everglades any time that day. (She had only reported being at School Board headquarters and at Meadowbrook.) On the January Voucher, for Tuesday, January 20, under "Places Visited," Respondent put, "Home to Everglades to Home" (a trip of 28.6 "Net [Reimbursable] Miles"); however, on the day in question, January 20, 2009, she had reported to the SCO secretarial staff that she was first on a home visit and then at Everglades. On the February Voucher, for Tuesday, February 3, under "Places Visited," Respondent put, "Home to Everglades to Home" (a trip of 28.6 "Net [Reimbursable] Miles"); however, on the day in question, February 3, 2009, she had not reported to the SCO secretarial staff that she was at Everglades any time that day. (She had only reported being at Meadowbrook and on a home visit.) On the February Voucher, for Friday, February 6, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, February 6, 2009, she had reported to the SCO secretarial staff that she was first on a home visit, then at Meadowbrook, and finally at the SCO. On the February Voucher, for Friday, February 13, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, February 13, 2009, she had not reported to the SCO secretarial staff that she was at the SCO any time that day. (She had only reported being on a home visit and at Meadowbrook.10) On the February Voucher, for Wednesday, February 4, under "Places Visited," Respondent put, "Home to Tropical to Home" (a trip of 9.8 "Net [Reimbursable] Miles"). Unlike the other entries on the January and February Vouchers discussed above, this entry was entirely consistent with what Respondent had telephonically reported to the SCO secretarial staff concerning her whereabouts on that day; however, as noted above, she had not been truthful in making such a telephonic report to the SCO secretarial staff. It was Mr. Tamburino's responsibility to check all of his subordinates' mileage vouchers, including Respondent's, "for accuracy" before approving them. Because "there [were] discrepanc[ies] between what was on the [January and February] [V]oucher[s] and what was on the [C]all [L]og," Mr. Tamburino did not approve these vouchers. Instead, he "forward[ed] the mileage voucher issue to the [School Board's Office of Professional Standards and Special Investigative Unit] for investigation."11 On or about April 23, 2009, Respondent was provided a Notice of Investigation (dated April 17, 2008), which read as follows: This correspondence is provided as formal notice of investigation into a complaint received in this office regarding allegations that you falsified records. You will be contacted in the near future for the purpose of giving a statement. You have the right to representation through all phases of this investigation. You are directed not to engage the complainant, or any student witness, or any other witness in any conversation regarding the matter under investigation. A violation of this directive could result in disciplinary action for insubordination. Questions regarding the status of this investigation are to be directed to Joe Melita, Executive Director of Professional Standards & Special Investigative Unit at (754)321-0735. This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file will be part of your personnel file and will be public record and it will become available for inspection by the public ten (10) days after completion of the investigative process. Investigator Johanna Davidson was the School Board employee in the Office of Professional Standards and Special Investigative Unit who conducted the investigation. As part of her investigation, Investigator Davidson took a sworn statement from Respondent on June 4, 2009.12 In her sworn statement, Respondent told Investigator Davidson, among other things, that she arrived at Meadowbrook at "around 8:00" a.m. on March 20, 2009, and stayed there "all day"13; that she "knew that [signing-in] was the procedure" at Meadowbrook; that this "procedure" had been in place for the past year and a half; that she signed in at Meadowbrook "99 percent of the time"; that she "may have missed one or two sign-ins" at Meadowbrook, but she did not "think [she] had"; and that she is "a very procedure and policy oriented person," so it would have been "odd" had she not signed in at Meadowbrook, even during the time, from January to April 2009, when she had been "on crutches."14 When asked by Investigator Davidson "what happened that day, February 4, 2009," Respondent made no mention of having been in the teacher's lounge at Tropical (where, in her testimony at the final hearing, she falsely claimed she had been the entire school day on February 4, 2009, leaving only once to go to the bathroom across the hall). Rather, in response to Investigator Davidson's inquiry, she suggested that this day (February 4, 2009) might have been one of the many days that school year that she had "taken off" because of health-related issues and that she had not "communicated properly" concerning her having "taken off" that day. Investigator Davidson completed her investigation and issued an Investigative Report detailing her findings in late June 2009. Investigator Davidson's Investigative Report contained a section entitled, "Summary of Investigation," the first paragraph of which read as follows: A Personnel Investigation Request pertaining to School Social Worker Jessica Harrison was received in the Office of Professional Standards & Special Investigative Unit. Ms. Harrison was accused of Falsification of Records stemming from the following alleged incidents: Ms. Harrison allegedly submitted a Temporary Duty Authorization (TDA) request to attend a conference but did not attend the conference, and allegedly reported to the South Central Area Student Services office that she was in attendance. Two of Ms. Harrison's assigned schools reported that Ms. Harrison was not in attendance on several days. Ms. Harrison allegedly did not report her absences to the South Central Area Student Services office. Ms. Harrison allegedly falsified mileage vouchers. The information that Investigator Davidson had obtained supporting these allegations was detailed in succeeding paragraphs of this section. (It was this information upon which the "[s]pecific [c]harges" in the instant Administrative Complaint were based.) The School Board's Professional Standards Committee met on September 9, 2009, to consider the results of Investigator Davidson's investigation and "found probable cause of falsification of records" warranting Respondent's termination. On September 16, 2009, Craig Kowalski, the Acting Executive Director of the School Board's Office of Professional Standards and Special Investigative Unit, sent Respondent a letter, which read as follows: The Professional Standards Committee met on September 9, 2009, and found probable cause of falsification of records. The Committee has recommended termination. Please be advised by way of this correspondence that you have been scheduled for a pre-disciplinary conference on Monday, October 5, 2009, at 11:00 a.m. in my office, which is located on the third floor of the Technical Support Services Center, 7720 West Oakland Park Boulevard, Sunrise, Florida. You have the right to representation at this conference. If for some reason you are unable to be present at this conference you must contact my office by 4:00 p.m. on Thursday, October 1, 2009. You have previously been furnished with a full report. You are not to disseminate these documents to the public and/or media since it may contain protected information. If you have a representative, it is your responsibility to furnish him/her with copies of your documentation. Your failure or refusal to appear at this conference will be considered a waiver of this procedural requirement. A copy of the Special Investigative Unit report and this letter are being forwarded to the Professional Practices Department of the State Department of Education to determine if certificate disciplinary action is warranted. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file is now a part of your personnel file and is a public record and it will become available for inspection by the public ten (10) days from receipt of this letter. Any request made by the public for the documentation referred to above will be provided in accordance with the laws of the State of Florida. Questions regarding this correspondence are to be directed to my office (754)321-0735. The "pre-disciplinary conference" was held on October 5, 2009, as scheduled. Present at the conference were Mr. Kowalski; Carmen Rodriguez, Esquire (on behalf of the School Board); Respondent; and Jerrod Neal of the Broward Teachers Union, whom Respondent had asked to speak on her behalf. Prior to the conference, Respondent had received, and had had the opportunity to review, Investigator Davidson's Investigative Report. During the conference, Respondent affirmatively adopted the admission made by her representative at the meeting, Mr. Neal, that she had engaged in the "falsification" of which she was being accused (as described in the Investigative Report). The following is a verbatim recitation of what was said at the October 5, 2009, "pre-disciplinary conference": MR. KOWALSKI: This is a pre-disciplinary hearing for School Board employee Jessica Harrison. We are here pursuant to an investigative report dated June 30th, 2009. This investigation was based upon allegations of falsification of records. The Professional Standards Committee has reviewed this matter and has made a recommendation for disciplinary action. The disciplinary action is for termination. Have you received a copy of the investigative report? MS. HARRISON: Yes. MR. KOWALSKI: The purpose of this pre- disciplinary conference is to give you the opportunity to bring forward any additional matters that you believe should be considered before final decision as to disciplinary action is reached. Such matters include any additional evidence, witnesses or any matter that you believe should be considered. This is also an opportunity to say anything which you believe should be considered on your behalf. I am going to ask you if you identify additional witnesses, please identify what you believe the witness knows or would testify to or what the witness can contribute to this investigation. Do you understand the purpose of this meeting? MS. HARRISON: Um-hm. Yes. MR. KOWALSKI: Is there anything you wish to say, do you have any additional matters that you believe should be considered.? MR. NEAL: Let me speak on her behalf, because I think Ms. Harrison has pretty much said a lot of things at the Professional Standards Committee meeting. Since we've talked, since the information that was gathered during the investigation, I have really had a chance to look over it, I was really surprised by the recommendation of termination. Not eliminating what happened, because what happened as far as falsification of records, it was done. But circumstances surrounding it, I don't think it really warrants termination, considering that it is not an easy thing when you're going through a lot of personal problems. Once again, it doesn't justify what was done. But I think under the circumstances, decisions were made with not a lot of clear thought, and I really believe that Ms. Harrison's intention, from what I have known over the last couple of years, have always been good. I just think it's a matter of the things that she was actually going through. She should have brought them to the forefront earlier so there could have been a better understanding of what was going on, not an excuse for it, but a better understanding for what was going on. And you know, I would not be in my duty if I don't mention the fact that there has been so much, or so many other things that have been done through the district that should have warranted termination and people were not terminated. And I just think this is a situation where termination is to the extreme. Whereas some sort of punishment should happen, but termination is just way too much for this situation, because I think in her state of mind as she is now, I don't think these mistakes will be made again. MR. KOWALSKI: Okay. Do you want to add anything Ms. Harrison? MS: HARRISON: I think he summed it up. MR. KOWALSKI: Okay. Thank you. We'll let you know the outcome. MR. Neal: Okay. About how long will that be. And he will let you know, so that means you will have to let me know once they let you know. MR. KOWALSKI: I have to meet with the Superintendent, and so within two weeks. MR. NEAL: Okay. Until then you just go back to doing what you have been doing. MS. HARRISON: Okay. MR. NEAL: All right. Appreciate it. Ms. RODRIGUEZ: Thank you. Mr. NEAL: Thank you. (emphasis supplied).15 The plea for leniency that Mr. Neal made on behalf of Respondent proved to be unsuccessful. On October 30, 2009, Broward County Superintendent of Schools Notter issued an Administrative Complaint recommending that Respondent be terminated for the "falsification" of attendance records and mileage vouchers described in Investigator Davidson's Investigative Report (conduct that Respondent had admitted, at the October 5, 2009, "pre-disciplinary conference," she had engaged in).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Broward County School Board issue a final order terminating Respondent's employment as a professional service contract school social worker with the School Board for the reasons set forth above. DONE AND ENTERED this 18th day of November, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2010.
The Issue The issue for determination is whether Respondent should be suspended, without pay and benefits, and terminated from employment with Petitioner for the offenses set forth in the Amended Administrative Complaint.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: (a) the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an intern principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time intern principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: Finding that Doreen Maynard committed misconduct, immorality, and gross insubordination, violating section 1012.33(4)(c), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.001, 6B-1.006, and 6B-4.009(2), (3), and (4); and Suspending Doreen Maynard, without pay and benefits, and terminating her employment. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2011.
Findings Of Fact At all times material hereto, Respondent was a 14 year old, seventh grade student at Nautilus Junior High School in Dade County, Florida, and all events occurred during the 1986-1987 school year. Mrs. Rita Gold was Respondent's fifth period English teacher. On September 10, 1986, she initiated a student case management referral form as a result of a series of confrontations with Respondent. From the very beginning of the 1986-1987 school year, Mrs. Gold had experienced Respondent's behavior in her class as both disruptive and disinterested, although he had been in attendance up to September 10, 1987. Initially in each school year, each student is given, and is required to complete the Florida State assessment tests. These are essentially for diagnosis of skills and placement in classes. Because Respondent informed Mrs. Gold that he had taken these in a concurrent class, she did not administer the assessment tests to him in her class. Thereafter, she discovered that he had lied and she must administer the tests to him during her class period. This took additional time when he and other students could better have been doing something else. When she presented the tests to him, Mrs. Gold observed Respondent filling out the answer blanks without taking the time to read the question sheet. She is certain of his persistent defiant attitude and refusal to obey her instructions in this regard because he continued to fill out the answer sheet without turning the pages of the skills questionnaire. On other occasions, Respondent made loud rebel outbursts in either English or Spanish of the type that follows: "I have to go to the bathroom!" "I want water!" "I don't understand this!" These outbursts were annoying to Mrs. Gold and disrupted normal classroom decorum. They are inappropriate for one of Respondent's age and Presumed maturity. Further disruptive and disrespectful behavior of Respondent that was noted by Mrs. Gold in her class are that: Respondent often spoke loudly when Mrs. Gold herself attempted to instruct the class; and on one occasion Respondent refused to come to her desk to get a book and announced to the rest of the class that she must bring it to him at his seat (Mrs. Gold has tried Respondent in several assigned seats and he has found fault with all of them). Respondent was chronically tardy; he refused to take home a deficiency notice to let his parents know he could fail the first 9 weeks' grading period but had time to improve; he did not read or write anything in class for the first full 9 weeks unless Mrs. Gold worked on a one-to-one basis with him; sometimes Respondent sat in class with his jacket over his head. Mrs. Gold feels there is no language barrier to Respondent's understanding what she wants. The parents gave her no report of medical disability which would account for Respondent's need for frequent fountain and bathroom requests. Mr. George A. Nunez is a physical education teacher at Nautilus Junior High School. He prepared a case management referral form on Respondent on October 2, 1986. This referral was a culmination of a series of incidents involving Respondent's chronic tardiness, repeated refusals to "dress out" and failure or refusal to remain in his assigned area of the grounds or gymnasium. All of these "acting out" mechanisms of Respondent were described by Mr. Nunez as an "I don't care attitude" and as "intolerable." Mr. Nunez is bilingual in English and Spanish and reports he has no communication problem with Respondent on the basis of language. The communication problem is the result of Respondent's disinterested and disrespectful attitude. All of Respondent's behavior problems were at least minimally disruptive to normal physical education class procedure and all attempts at teaching, but his wandering from the assigned area particularly disrupted other students' ability to learn in Mr. Nunez's class and in other physical education classes held simultaneously. Respondent was belligerent when replying to Mr. Nunez' remonstrances for not standing in the correct place. In the first grading Period of the 1986-1987 school year, Respondent had 8 absences and 3 tardies in physical education, which can only be described as chronic and excessive. He also had no "dress outs." Failure to "dress out," in the absence of some excuse such as extreme poverty, must be presumed to be willfully disobedient and defiant. Respondent did not fulfill his detentions assigned by Mr. Nunez as a discipline measure and repeated his pattern of chronic tardiness and absences in the second grading period, which absences and tardies were recorded by Mr. Nunez on behalf of another teacher who had been assigned Respondent. Stanton Bronstein is a teacher and administrative assistant at Nautilus Junior High School. On September 17, 1986, Mr. Bronstein discovered Respondent in the hallway during second period without a valid reason. He concluded Respondent was "cutting" class when Respondent provided no valid reason for being out of class. On October 3, 1986, Bronstein observed Respondent enter the hallway at approximately 12:30 p.m. Respondent had no satisfactory explanation for why he was out of class or of what he had been doing, and Bronstein concluded Respondent had cut his first through third period classes. Each of these incidents resulted in student case management referrals. On October 6, 1986, Bronstein initiated another student case management referral upon reports of classroom disruption and cutting made by a teacher, Mrs. O'Dell, who did not testify. No admission was obtained by Bronstein from Respondent on this occasion. The underlying facts alleged in the report originating with Mrs. O'Dell are therefore Uncorroborated hearsay, however the case management report of that date is accepted to show that Bronstein contacted Respondent's parents on that occasion and ordered outdoor suspension for Respondent. As of October 21, 1986, Respondent bad been absent from school a total of 10 whole days without any written parental excuse. When he returned on October 21, 1986, he was tardy and was referred to Mr. Bronstein who counseled with Respondent, received no acceptable excuse from him, and initiated a case management referral resulting in indoor suspension with a letter informing Respondent's mother of the suspension. After referrals for incidents on October 23, 1986 and October 31, 1986, further disciplinary measures were taken against Respondent, including a conference with Bronstein, the parents, an interpreter, and the principal, Dr. Smith, present. A series of detentions thereafter were not fulfilled by Respondent in defiance of school authority, despite several rearrangements of the times for the detentions so as to accommodate Respondent's schedule and requests. This resulted in further conferences between the school administrators and the parents with a final outdoor suspension. Dr. Paul Smith, Assistant Principal at Nautilus Junior High School, recounted a lengthy litany of referrals of Respondent by various teachers, a history of counseling sessions, Parental contacts, detentions, and suspensions which had failed to modify Respondent's disruptive, unsuccessful, and disinterested behavior. Respondent's grades for the first grading period of the 1986-1987 school year were straight "Fs" (failures). Respondent was frequently seen by Dr. Smith leaving school after he had once arrived. No medical condition was made known to Dr. Smith which would account for Respondent's misbehavior. Respondent has been evaluated by the child study team and Dr. Smith concurs in their analysis that it is in Respondent's best interest that he be referred to Jan Mann Opportunity School-North, where a highly structured alternative education program with a low Student-to-teacher ratio can control him Sufficiently to educate him. Bronstein concurs in this assessment. Both feel all that can be done in the regular school setting has been done for Respondent. At hearing, the mother, Mrs. Gonzalez, asked a number of questions which assumed that notes had been set to school asking that Respondent be given extra opportunities to get water because of excessive thirst, but no school personnel bad ever received any such notes. Despite numerous parent-school conferences, no school Personnel could remember this issue being raised Previously. By her questions, Mrs. Gonzalez also Suggested that Respondent had no gym clothes. However, Mrs. Gonzalez offered no oral testimony and no documentary evidence to support either premise and the parents' Posthearing submittal does not raise these defenses. The undersigned ordered the Respondent's posthearing proposal which was submitted in Spanish to be translated into English and thereafter considered it. The proposal only complains about the alternative educational Placement upon grounds of excessive distance of Jan Mann Opportunity School-North from the Respondent's home and states the parents will place him in a private school. Since Respondent has not already been withdrawn from the Dade County Public School System, the latter statement cannot be accepted as dispositive of all disputed issues of material fact, as it might be under other circumstances. As a whole, the Respondent's Posthearing Proposal is rejected as irrelevant, not dispositive of the issues at bar.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Jan Mann Opportunity School-North until such time as an assessment shows that Respondent can be returned to the regular school system. DONE and RECOMMENDED this 12th day of June, 1987, at Tallahassee, Florida. ELLA JANE P. 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 12th day of June, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 Norma Gonzalez 657 Lennox Avenue, Unit No. 1 Miami Beach, Florida 33139
The Issue Whether the School Board's decision of March 26, 1998, to designate attendance zone for a new elementary school in Orange County was a "Rule," as defined in Section 120.52(15), Florida Statutes. Whether Petitioner has standing to bring a rule challenge in this tribunal. Whether the School Board's adoption of a new attendance zone is invalid because: It only received an affirmative vote of four of the Board's seven members on March 26, 1998; changes to Shenandoah's attendance zones were not considered in any planning or workshop prior to the March 26 meeting; and/or the failure of the School Board to publish notice of adoption of a rule 28 days in advance of its March 26 meeting makes the decision invalid. Whether the School Board was required to provide notice of development of a rule prior to its decision to include the area in question (the two neighborhoods which had been in the Shenandoah attendance zone) in the Lake George attendance zone and, if so, whether that renders the School Board's March 26 action invalid, pursuant to Sections 120.54(2)(a) and (c), Florida Statutes. Whether DOAH has the authority to grant freedom of choice for the residents of the two neighborhoods to pick which of the two schools (Shenandoah or Lake George) to attend. Whether the School Board's unanimous approval of the minutes of its March 26 meeting cures any defects in the process.
Findings Of Fact This dispute involves the establishment of an attendance zone for a new elementary school in Orange County: Lake George Elementary School. Lake George Elementary School is a new elementary school established and to be operated by the School Board of Orange County, Florida. Construction of the school began in the fall of 1997 and the school is scheduled to open shortly, at the beginning of the 1998-99 school year. The site for the school was selected in 1995. It was originally intended to relieve two overcrowded elementary schools: Conway and Dover Shores. Staff will report to Lake George for pre-planning on August 4, 1998, and the first day of classes for students will be August 10, 1998. Orange County's other elementary schools follow the same schedule. The Orange County School District covers the entire county, approximately 1,003 square miles. The population of Orange County, according to The Florida County Atlas, was 727,760 in 1993. During the 1997-98 school year, the District enrollment was 134,292, an increase of nearly 6,000 students over the previous year. Sixty-four thousand two hundred and eight students were enrolled in the District's elementary schools for the 1997-98 school year. As of January 1, 1998, the District operated 91 elementary schools. In March 1997, Orange County School Board staff met with parents of students attending Ventura, McCoy, Conway and Dover Shores Elementary Schools in a public planning session for the development of the new elementary school's attendance zone. (This is the school that would become Lake George Elementary School.) Parents of students attending Shenandoah Elementary School were not invited to attend because Shenandoah students were not involved in staff's plans for the new elementary school zone at that time. On January 18, 1998, the School Board published in The Orlando Sentinel (a newspaper of general circulation throughout all of Orange County) a notice of a public workshop to discuss the establishment of the Lake George Elementary School attendance zone. The workshop was scheduled for January 27, 1998. The notice was published on page K-13 of the "Orange Extra," a Sunday supplement in The Orlando Sentinel and was also posted in appropriate locations. On January 27, 1998, the School Board convened in open, public session to hear staff and public input regarding an attendance zone for Lake George Elementary School and discuss options. Three different options for a Lake George Elementary School attendance zone were explained by staff to the School Board. None of those options involved transferring students from the Shenandoah Elementary School attendance zone. On February 4, 1998, the School Board published in The Orlando Sentinel a Notice of Proposed Action regarding the establishment of the Lake George Elementary School attendance zone. The proposed attendance zone for Lake George Elementary School described in this notice did not involve transferring any part of the Shenandoah Elementary School attendance zone to the Lake George Elementary School attendance zone. The notice called for a public hearing to be held on February 24, 1998. On February 24, 1998, the School Board held a public hearing regarding the proposed attendance zone for Lake George Elementary School. Staff explained its recommended proposal to the School Board and additional input was given by members of the public. At the conclusion of the February 24 public hearing, the School Board discussed the staff proposal and, based on input from the public hearing, voted 6-1 to establish the following attendance zone for Lake George Elementary School: Area transferred from Ventura Elementary School to Lake George Elementary School: The area west of Semoran Boulevard, north of Lake Margaret Drive, east of Dixie Belle Drive, and south of the Orange Orlando Apartments. Area transferred from McCoy Elementary School to Lake George Elementary School: The area west of Semoran Boulevard, north of Abercom Road, and east of Kennedy Road. Area transferred from Conway Elementary School to Lake George Elementary School: The area south of Michigan Avenue and east of Conway Road, including the east side of Conway Road. Area transferred from Dover Shores Elementary School to Lake George Elementary School: The area west of Dixie Belle Drive containing the seven most southern buildings of the Belle Crest Apartment complex. The zone described in Paragraphs A-D, above, was consistent with what had been advertised. However, staff had also recommended that the School Board transfer the seven most northern buildings of the Belle Crest Apartment complex, containing a projected 114 students, from Dover Shores Elementary School to Lake George. After hearing public comment, the School Board decided not to transfer that area. At the conclusion of the February 24 public hearing, based on input from the hearing, the School Board also arrived at a consensus that the following portion of the Shenandoah Elementary School attendance zone be added to the Lake George Elementary School attendance zone: The area north of Gatlin Avenue and east of Conway Road. That area includes the subdivisions cited in the Petition (Gatlin Place and Windward Place.) At the conclusion of the February 24 public hearing, the School Board directed staff to advertise another public hearing so the School Board could hear community input regarding inclusion of the area described in paragraph 12 in the Lake George attendance zone involving Shenandoah Elementary School which includes 104 students. On March 2, the School Board's staff invited the parents of students living in the affected area (i.e., the area described in paragraph 12) to discuss the proposed zone change at a public meeting to be held at Shenandoah Elementary School on March 9. The School Board's Office of Pupil Assignment mailed letters to the homes of each elementary school student who had been enrolled at Shenandoah and would be assigned to Lake George if the proposal (described in paragraph 12) were approved. On March 4, 1998, the School Board published in The Orlando Sentinel a second Notice of Proposed Action regarding the establishment of the Lake George Elementary School attendance zone. The proposed action specified in this published notice called for an attendance zone for Lake George Elementary School that was identical to the one formally adopted (by a 6-1 vote) at the School Board's February 24 meeting, but added to the Lake George Elementary Zone that portion of the Shenandoah Elementary School attendance zone described in paragraph 12, above. This notice was also posted in appropriate locations. The grade structure, program offerings, and educational opportunities to be offered at Lake George Elementary School are comparable to those offered at Shenandoah Elementary School. On March 9, a representative of the School Board's Office of Pupil Assignment who had assisted in preparing the proposal for the Lake George attendance zone met at Shenandoah Elementary School to explain the proposal, solicit public input, and respond to questions and comments about the proposal. At its March 10, 1998, meeting, the School Board unanimously approved its minutes for the February 24 meeting. On March 26, 1998, the School Board held its second public hearing on the Lake George Elementary School attendance zone. Twenty-two individuals addressed the School Board, many of whom resided in the portion of the Shenandoah attendance zone that was to be transferred to the Lake George attendance zone. Other options suggested by members of the public and discussed by members of the School Board included leaving the Gatlin Place and Windward Place subdivisions at Shenandoah and/or transferring a portion of the Dover Shores zone into Lake George. At the conclusion of the second public hearing on March 26, 1998, after public discussion by members of the School Board, a roll-call vote was conducted and the members voted, 4-3, in favor of the advertised proposal. The chairman declared that the motion was approved. Subsequently, the meting adjourned. At its April 14, 1998, meeting the School Board unanimously approved its meetings for the March 26 meeting. In relevant part, the minutes state: The motion passed with a majority vote of 4-3. Prior to October 25, 1993, the School Board had adopted Policy BG stating: The School Board shall determine and adopt such rules as are deemed necessary for efficient operation and general improvement of the school system. These rules may be amended, repealed or a new rule adopted as hereinafter prescribed. The term "rule" is defined in Section 120.52(16), Florida Statutes. * * * Unless an emergency exists any proposal relating to a rule amendment, the repeal of any rule or the adoption of a new rule shall be presented in writing to the School Board including a written explanation of the proposal. * * * Any person who is substantially affected by a proposed rule, rule amendment or the repeal of a rule may within 21 days following notice of intent to adopt, amend or repeal such rule, file a written request with the School Board seeking an administrative determination as to the validity of the proposed rule action. A vote for adoption shall require a two- thirds affirmative vote (five of the total membership of the School Board.) The formal adoption of policies shall be recorded in the minutes of the School Board. Only those written statements so adopted and recorded shall be regarded as official School Board policy. This School Board rule was in effect at all times material to this proceeding, as were the following policies: BBA, BEDH, BGC and CB. Each member of the School Board took an oath of office to "Perform the duties of Member, School Board of Orange County." On May 12, 1998, Petitioner addressed the School Board, He said that the Board had failed to follow Policy BG (requiring a two-thirds affirmative vote to adopt the modifications to the Lake George Elementary School attendance zone made at the Board's March 26 meeting) and had failed to give proper notice of its adoption of that proposal in that Shenandoah's attendance zone was never considered in the planning/workshop meetings and the advertisement was published only 22 days before the vote. He requested that the Board take action to correct those deficiencies. Petitioner filed his Petition for Formal Administrative Hearing with the School Board on May 29, 1998. At Petitioner's request, the School Board forwarded the Petition to the Division of Administrative Hearings on June 18, 1998. On July 1, 1998, the School Board published in The Orlando Sentinel a Notice of Proposed Action regarding the establishment of the Lake George attendance zone which would affect Lake George, Dover Shores, Senandoah, Ventura, McCoy and Conway Elementary Schools. This proposal is the same as was approved by a 4-3 vote on March 26, 1998.
