The Issue The issues is this case are: (1) whether a letter written by an attorney for Respondent, Department of Education (Respondent or Department), is an unpromulgated rule; whether Petitioner, Harid Conservatory of Music, Inc. (Petitioner or Harid), is substantially affected by the letter it seeks to challenge as an unpromulgated rule; and (3) whether, if Petitioner prevails, it is entitled to attorney's fees and costs pursuant to section 120.595(4), Florida Statutes (2010).1/
Findings Of Fact Harid is a not-for-profit corporation that provides training for ballet dancers at its campus in Palm Beach County, Florida. Harid recruits ballet dancers not only from Florida, but, also, from other states and other countries. Ballet students are admitted to Harid based primarily on their artistic talent, and once admitted, attend tuition-free. Harid is highly selective, with an average enrollment of only 40 students. Harid students reside at Harid for all but approximately two and one-half months each year. Harid receives funding from benefactors and also engages in fundraising to carry out its training program. Harid generates more than enough from these funding sources to cover the costs of ballet training. Therefore, Harid is able to make additional financial assistance available to those of its students whose parents otherwise would be unable to afford the additional cost of room and board. Harid students are all high-school aged. As a result, while these students are enrolled at Harid, in addition to their intensive ballet training, arrangements must also be made for the dancers to receive a high school education. Harid students are required to attend high school, meet and maintain high academic standards, and remain on track for high school graduation. While Harid enrollees are in residence at Harid, they are under the supervision of a number of different Harid staff and faculty, including Harid's director, registrar, residence hall managers and supervisors, and other Harid staff and faculty. The residence hall supervisors reside in Harid's residence hall. Harid staff and faculty oversee all aspects of the dancers' lives, both on campus and off, during the time that Harid dancers are in training. The evidence did not establish that a specific staff person is assigned the responsibility for individual supervision of each individual Harid dancer; rather, the description given by Harid's director was that of multiple staff members in different roles, who cumulatively serve as the dancers' supervisors. The oversight role collectively played by numerous individual staff members at Harid was not shown, nor alleged to actually displace the parents of these students from their parental roles while their children are at Harid. In addition, presumably, during the two and one-half months that the Harid dancers are not in residence at Harid, they return to their homes and remain under the supervision of their parents. In other words, Harid staff and faculty oversee the students' lives while they are in residence at Harid to the extent necessitated by the remoteness of the students' parents. Since 1992, Harid students have attended Spanish River Community High School (Spanish River), a public school within the District, in order to earn credits in academic core subjects. The oversight role Harid staff members play with regard to Harid students includes acting as their "parents" for purposes of providing consents and executing other forms needed by Spanish River and the District, serving as contacts for notifications regarding the students, and communicating with Spanish River and the District on matters relating to Harid students. The record does not reflect whether one individual, or multiple individuals, at Harid perform these functions of signing consents, executing forms, serving as the contact for notifications, and communicating with the school and the District regarding Harid students. No evidence was presented regarding the history of how exactly Harid students came to be allowed to attend Spanish River; what, if any, documentation has been provided to Spanish River to support requests to enroll Harid students in the high school; or whether that process has changed over the years. However, the record shows that in July 2007, the District promulgated new policies on student residence enrollment requirements that are now in effect for the District's public schools. The District has had, for many years, a promulgated policy, Policy 5.01, which provides general criteria for student assignment to District schools. According to the history notes for this rule, Policy 5.01 was originally adopted in 1972 and was amended numerous times since then, as recently as December 12, 2008. The prior versions of the general criteria rule are not in the record. In its current form, which has been in effect since December 2008, Policy 5.01(1)(b) includes the following as general criteria for student assignment: Students shall be assigned to schools based on residence of the student/parent/guardian as stated below . . . The residence of a minor student shall be the domicile of his/her parent, as defined in Fla. Stat. § 1000.21(5) (which includes a legal guardian). . . The residence of a student who is married or above the age of majority shall be his/her domicile. The Superintendent/Designee may, in unique and hardship cases, determine residence based upon approval of the use of a notarized statement executed by the parent or legal guardian granting a general power of attorney and general custody of a student to a resident of Palm Beach County consistent with Policy 5.011.[3/] (Emphasis added). Policy 5.011, entitled, "Student Residence Enrollment Requirements," was more recently promulgated, first taking effect on July 11, 2007, according to the history note. This policy reiterates the general rule in Policy 5.01 that students must attend the school in the attendance zone where their parents or legal guardians are domiciled, or for students who are married or not minors, where the students are domiciled. The first five sections of Policy 5.011 specify in great detail the documentation that is required to prove domicile, the penalties for submission of false information, and the special provisions that apply to enrollment of homeless students and students in foster care. Policy 5.011-6 applies to "Persons Acting as Parent," and provides in pertinent part: For purposes of establishing student residency, a "parent" is defined as either or both natural or adoptive parent(s) of the student, the student's legal guardian, a person in a parental relationship to the student, or a person exercising supervisory authority over the student in place of the parent, pursuant to Fla. Stat. A. § 1000.21(5). The student must actually reside with the parent or Person Acting as Parent as the student's primary residence. . . . A Person Acting as Parent must complete form PBSD 1543, which is incorporated herein by reference and is available on the District's web site at www.palmbeach. k12.fl.us/Records/FormSearch.asp. Form PBSD 1543, incorporated by reference in the District's rule, is an Affidavit of Person Acting as Parent. The stated purpose of the affidavit "is to verify the status of a person acting as parent." The instructions on the form require that the form be completed and submitted to the school where the student is seeking to enroll. In pertinent part, the affidavit form provides: I, (name of guardian/person acting as parent) , am acting as parent for the following named child or children (print name of child or children): I, (person acting as parent/guardian) am currently residing with the above-named child(ren) at the residential address address below in Palm Beach County, and this is the child(ren)'s primary residence . . . * * * Pursuant to Florida Statutes § 1000.21, I qualify as a person acting as "Parent" under the following circumstances (check one only) Guardian of a student (legal guardianship papers are required) Person in a parental relationship (Proof Required - written notarized statement from the natural parent or guardian explaining why they are unable to perform in a parental role is required. Provide address and telephone number of natural parent below.) Person exercising supervisory authority over a student in place of a parent (Proof Required - written notarized statement from the natural parent or guardian explaining why they are unable to perform in a parental role is required. Provide address and telephone number of natural parent below.) (Emphasis added). As with the penalty warnings for falsification set forth in Policy 5.011, the form Affidavit of Person Acting as Parent warns of the statutory penalties for making false declarations. In addition, by signing the affidavit, a person acting as parent acknowledges the following: "I understand that falsification of this information may result in the withdrawal of my child(ren) from this school and that falsifying my residence when enrolling my child(ren), may be referred to law enforcement for prosecution." The controversy in this proceeding arose according to Robert Glassman, a senior counsel in the District's Office of Chief Counsel, "when the administration at [Boca Raton High School] requested authorization to register a number of students at Boca Raton H.S., who are enrolled at the Bucky Dent Baseball Academy" (Bucky Dent Baseball) in Boca Raton, Florida. Mr. Glassman elaborated on the Bucky Dent Baseball request: On February 24, 2011, our office received a request for information on the procedure to enroll students at [Boca Raton High School] who were participating in the Bucky Dent Baseball Academy in Boca Raton. In support of the School's position, reference was made to a similar program which was operated by the Harid conservatory in conjunction with Spanish River H.S. The program at Spanish River has been in existence for quite some time. This is the first time a request has been made for students associated with the Bucky Dent baseball academy. Both schools were relying on provisions of School Board Policy 5.011, which does permit schools to accept for enrollment those children from other persons acting as parents under limited circumstances. (see Sch. Bd. Policy 5.011-6) . . . [It was] agreed that we should contact the State DOE to determine their position on the issue. As a result I did contact the General Counsel's Office for FDOE, and spoke with [assistant general counsel] Mari M. Presley, on March 2, 2011. (Emphasis added). Ms. Presley confirmed that she received Mr. Glassman's telephone call on March 2, 2011. That same day, Ms. Presley repeated the question posed to her by Mr. Glassman in the following email to two colleagues at the Department: I have an FTE residency issue that I was hoping you could help me resolve. In Palm Beach county, there are two private "academies" (one for baseball and one for dance) that recruits [sic] from anywhere, including out of state. They have some students who live on campus, and some who live off campus. The students who do not live in Florida have their parents sign a form that purports to give someone (apparently a staff member at the academy) "guardianship for purposes of education." Once that is signed, the "guardian" enrolls the student in public school in Palm Beach County. (As an aside, the tuition is $20,000 to $30,000). Palm Beach County does not believe this is right, but they want to know from us whether they can deny enrollment under these circumstances. They note that their policies adopt the definition of parent that is found in [section] 1000.21(5) [Florida Statutes], "either or both parents of a student, any guardian of a student, any person in a parental relationship to a student, or any person exercising supervisory authority over a student in place of the parent." I'm inclined to say that a parent cannot create residency through what is essentially a sham "guardianship" form. What are your thoughts? Do we have any history with this topic? Do you know of any [Technical Assistance Papers] or guidance we have issued in the past on this? Do you know what the auditors would advise on this? (Emphasis added). Ms. Presley prepared a written response to Mr. Glassman's query in the Letter challenged by Harid in this proceeding. In that letter, Ms. Presley followed her inclination as described to her colleagues five days earlier and drew support from an "analogous" situation. The text of the Letter is set forth in full below: Re: Florida Residency for Public School Enrollment Dear Mr. Glassman: You have brought to our attention an issue relating to whether certain students are residents of the State of Florida for purposes of enrolling in Florida public schools. You indicated that one or more private academies recruit students from out of state to attend their academies at which they receive instruction in an extracurricular field of endeavor (e.g., baseball or dance). The parents of the out-of-state students do not live in Florida, but the students themselves live in Florida during the period of enrollment in the academy, either on or off of the academy's campus. In an apparent effort to establish Florida residency, the parents of these students sign a document purporting to give someone associated with the private academy "guardianship over the education" of the student. Utilizing this "guardianship," the academy then attempts to enroll the student in Florida public schools, claiming the student is a Florida resident. This letter is to advise you that the Florida Department of Education would not consider such a student a resident of the state for purposes of enrollment in Florida public schools. As I am sure you are aware, the residence of a minor ordinarily follows the residence of his or her parents. In the event that a child has been entrusted to a guardian who sits in loco parentis, the residence of the child may follow the residence of the guardian. However, in the circumstances described above, the parents remain the true guardians of the student. Allowing resident status based on the "guardianship" described above would elevate form over substance, and we therefore conclude it is not sufficient to establish residency in this state for purposes of enrolling in public schools. This situation is analogous to the circumstances that prompted an OPPAGA[4/] report dated October 2003, a copy of which is attached hereto. In that report, OPPAGA examined whether an out-of-state exceptional student education (ESE) student was a "resident" of Florida for purposes of public school FTE if the student came to Florida to attend a residential care facility. As in the situation described above, the students "lived" in Florida at the private facility but the parents lived out of state. OPPAGA concluded that since the residency of the student followed that of his/her parents, such a student would not be a resident of the State of Florida and would not be eligible to attend public school in this state. Such a student could not be reported for FTE funding. That position was codified in section 1003.57(2)(a), Florida Statutes. The same conclusion applies to the situation described above. (Emphasis added). The Department does not dispute the fact that it has not promulgated the Letter as a rule in accordance with section 120.54. The specific question posed by Mr. Glassman, as summarized in Ms. Presley's email to her colleagues and again in the Letter, is whether having a child's out-of-state parent(s) execute a form "guardianship over the education," granting such a "guardianship" to a staff person at one of the two extra- curricular training academies in Palm Beach County, Florida, qualifies that staff person as a "guardian." Mr. Glassman apparently was under the misimpression, when he asked his question, that both Bucky Dent Baseball and Harid used a form "guardianship over the education" in order to attempt to establish Palm Beach County residency for their enrollees. Mr. Glassman's description was based on a specific inquiry from Bucky Dent Baseball; apparently, it was the Bucky Dent Baseball program that described Harid's operations as similar in an effort to obtain approval for enrollment of its baseball students. Regardless of how Mr. Glassman got his impression that the programs were similar, the facts assumed in the Letter were not shown to fit the Harid program. There were no allegations in the petition, nor was any documentation offered to establish, that Harid uses a form "guardianship over the education" as described in the Letter. Harid's counsel acknowledged at the oral argument that Harid does not utilize a form "guardianship over the education." Harid does not ask parents of enrolling ballet dancers to execute a form "guardianship over the education" that gives a Harid staff person "guardianship over the education" of the Harid enrollee. Upon receiving Ms. Presley's letter, Mr. Glassman set forth his suggested approach for the District to follow in dealing with the request for authorization to register students from Bucky Dent Baseball. His analysis provided in pertinent part: Registration of Students from Bucky Dent BB Academy . . . I received Ms. Presley's written response to my inquiry on March 11, 2011. . . . Essentially, it is the opinion of the FDOE that under the circumstances of both the dance and baseball programs at issue here, the residency of the student follows that of the natural parent. Thus it would be improper to allow a student who does not live with his or her parent(s) with in [sic] the School's boundaries to enroll in such school. The DOE Counsel's opinion is based upon the OPPAGA report dated October, 2003. * * * While the [OPPAGA] report . . . [applies] to exceptional students' instruction, the logic of the placement issue would be the same for any student. The provision of [District Policy] 5.011(6), would apply in the unique circumstance such as where the natural parent(s) could not provide for the care of their child and had to designate someone to be the child's guardian for all purposes. In the two situations here the parents are simply electing to send their children to a private school for enrichment on certain extracurricular activities (dance or baseball) and then asking the School Board of Palm Beach County to provide the educational component of the program to those students whose parent(s) do not live within the boundaries of that particular school. Allowing such students to be enrolled would be contrary to the opinion of the FDOE and the intent of School Board Policy 5.011-6. However, since the program at Spanish River has students already enrolled, who are near the end of their high school career, it may be considered unjust to penalize those students. Consequently, the District may consider whether those students who are currently enrolled at Spanish River in grade 11 and 12, through the Harid Conservatory, will be allowed to complete their registration at that school if they desire to do so. All other existing students and any new students seeking registration for the next school year (2011/2012) from either program will not be accepted. It should be understood that there is no certainty that those students that are registered next year will be eligible for FTE funding. This is a risk the District would need to accept if it allows those students identified above to be registered. (Emphasis added). The District apparently accepted Mr. Glassman's suggested approach. On March 28, 2011, the District's assistant superintendent sent the following email to two District school principals: Dear Principals: Based on a legal opinion from the Florida Department of Education, dated March 7, 2011, the DOE would not consider an out of state student attending a private academy (i.e. Bucky Dent Baseball Academy or Harid Dance Conservatory [sic]) "a resident of the state for purposes of enrollment in Florida public schools." Therefore, these students cannot be enrolled in Spanish River High School nor Boca Raton High School, and those that are currently enrolled must be made aware of the need to find other options for graduation. The exception will be at Spanish River High School, where current Seniors and next year's Senior class will be allowed to graduate from Spanish River. No other students can be enrolled, and grade 9 and 10 Harid Dance Conservatory [sic] students will not be allowed to attend after this year. The District's decision regarding enrollment of Harid students was also conveyed to Harid, according to the affidavit of Harid's director. Neither the substance, nor the means of the District's communication of its decision to Harid are of record. Harid describes the injury it believes it will suffer because of the Department's Letter, as follows: The impact of the Letter on Harid is direct and not speculative. As a not-for-profit entity, Harid's ability to operate its programs and to offer talented young dancers professional training without sacrifice to their academic education will be impaired. Harid's efforts to attract and enroll new students -- as well as retain its current student body -- will be significantly impaired if Harid is unable to offer access to the public schools of Florida, is required to charge students tuition for private high school, or must incur the expense of private school tuition on top of the expenses already incurred for the professional ballet dance training provided to Harid students. (Emphasis added). Harid alleges that this described impact is the type that the Florida Education Code is designed to protect, because the definition of "parent" in section 1000.21(5), Florida Statutes, includes "a person exercising supervisory authority over a student in place of the parent." Harid claims to meet this description and, as such, claims that it has a legally recognized right to be a "parent" under the Florida Education Code. Harid's petition and motion for summary final order request the following relief: (1) a determination that the Letter is an invalid unadopted rule; (2) an order that the Department immediately discontinue reliance upon the Letter; and that the Department pay Harid's attorney's fees and costs incurred in this proceeding. In contrast, Harid's cross-motion for summary final order and Proposed Summary Final Order both revise the second category of requested relief to provide: "All reliance upon the [Letter] shall immediately be discontinued." No evidence was presented to support a Finding of Fact that at least 30 days before Harid filed its petition initiating this proceeding on May 2, 2011, the Department received notice that its Letter may constitute an unpromulgated rule. The petition itself does not allege that such 30-day advance notice was provided.
The Issue Did Respondent, Yolie Bauduy, violate section 1012.795(1)(g), Florida Statutes (2018)?1 Did Respondent, Yolie Bauduy, violate section 1012.795(1)(j)? 1 All citations to the Florida Statutes are to the 2018 codification unless otherwise noted. Did Respondent, Yolie Bauduy, violate Florida Administrative Code Rule 6A-10.081(2)(a)1.?
Findings Of Fact Parties Petitioner, Richard Corcoran, is the Commissioner of Education. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Ms. Bauduy holds a Florida Educators Certificate covering the areas of Autism Spectrum Disorder, Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education (ESE), and Middle Grades Integrated Curriculum. It is valid through June 30, 2025. Ms. Bauduy teaches at Gotha Middle School in the Orange County School District and did at the time of the events alleged in the Administrative Complaint. During the period during which the alleged acts occurred, Ms. Bauduy taught students with autism. She has served students with disabilities of Orange County as an educator in ESE programs for 16 years. She taught at Gotha Middle School for 14 of those 16 years. Other than discipline for the incidents that are the subject of this proceeding, the District has never disciplined Ms. Bauduy. The school has recognized Ms. Bauduy as an effective teacher. For instance, an evaluation resulting from seven days of in-class observation in November 2020 concluded that she was applying all four expected classroom strategies and behaviors. The Education Practices Commission has never disciplined Ms. Bauduy. Gotha Middle School and Ms. Bauduy's Class During the 2018-2019 school year, all of Ms. Bauduy's students had disabilities that required more assistance and support than needed by students in the general population. Because of their disabilities, Ms. Bauduy's students required a modified curriculum that was less rigorous than the standard curriculum. The modified curriculum included social, skills, personal skills, and independent function skills. Teaching those skills helps students learn to manage their behavior and become more independent. All of Ms. Bauduy's students had Individual Education Plans (IEP). These plans identify a student's disabilities, their effect, and behavior that may arise from them. They establish goals for the student in light of the student's disabilities. And they identify strategies for helping the students accomplish the established goals. The demands of teaching students with disabilities required additional staff in the classroom to assist Ms. Bauduy. The school determined that properly caring for and teaching the children required a three to one student teacher ratio. The students' IEPs also required this staffing ratio. For that reason, the school assigned two paraprofessionals to assist in Ms. Bauduy's class of ten people. This was in addition to Ms. Edoo, who was assigned to student E.K. one-on-one. Thus, the proper staffing complement for Ms. Bauduy's class was four adults. Throughout the 2018-2019 school year, Gotha Middle School experienced chronic staffing shortages. One paraprofessional position in Ms. Bauduy's class was vacant the entire year. The school engaged a long- term substitute. That person often did not show up for work. In those instances, the school sought, often unsuccessfully, to engage fill-ins from a temporary staffing agency. In addition, the school usually did not provide staff to cover the paraprofessionals' breaks and lunches. Throughout the year, Ms. Bauduy had to juggle staffing shortages as best she could. During the representative month of September 2018, Ms. Bauduy's class was short one adult seven full days and four partial days. On September 11, 2018, Ms. Bauduy's class was down two professionals. When the paraprofessional staff took their breaks or lunch periods, the staffing deficiencies worsened. Ms. Bauduy repeatedly advised the administration about the staffing deficiencies, sought assistance, and expressed her concerns about not complying with students' IEP requirements. Her communications included a September 5, 2018, email advising that a substitute had not arrived, a September 11 email forwarding an email from a paraprofessional advising she was not coming in, and a September 26 email advising that a substitute once again failed to arrive and asking for assistance. In January 2019, despite the chronic understaffing, the school transferred two students, T.M. and N.A., from other classrooms to Ms. Bauduy's class. These students' disabilities were more profound and required more supports than the other students. They were regular elopers, required diaper changes, and required individual nearly one-on-one prompting for tasks. Among other things, T.M.'s disabilities required having someone hold his hand during transitions. Placement of T.M. and N.A. in Ms. Bauduy's class was not appropriate. Ms. Bauduy continued sending emails expressing her concerns and frustrations about understaffing. She also repeatedly, without effect, sought to get the school to change mandatory meetings to her planning period or after school because the meetings caused her to leave the classroom and exacerbated the staffing problems. Between October 25, 2018, and March 4, 2019, Ms. Bauduy sent 17 emails requesting full staffing and advising of staff absences. Ms. Bauduay could not rely upon prompt responses when she called for assistance or additional staffing to put her room back in compliance with the required student/adult ratio. Sometimes she received a quick response. Sometimes no one came. Often there was a 20 to 30-minute delay before assistance arrived. Even when management responded to Ms. Bauduy's request for a schedule of when behavior staff would be available to support her students, management's response was conditional. For instance, Laura Fogarty, ESE Curriculum and Instruction Team Instructional Coach, conditioned the schedule of available staff that she provided as follows. Please remember, however, that this schedule is in a perfect world. The behavior support team's first priority is to respond to radio calls and have other responsibilities that don't always make it possible for them to be in your room for the times listed below. They may also have to leave to respond to a behavior call when they are in there. Below is the ideal, if everything goes right and there are no behavior calls or other areas that require their attention. The world in which Ms. Bauduy taught was neither perfect nor ideal. Ms. Bauduy's testimony about staffing difficulties and insufficient responses to requests for assistance differs from testimony of school representatives. Ms. Bauduy was more credible and persuasive than the school representatives. Four of the reasons for this judgment are Ms. Bauduy's sincere demeanor, documents such as emails and logs consistent with her testimony, the admission in Ms. Fogarty's email that even scheduled availability of support was not reliable, and the corroborating testimony of a paraprofessional who worked in Ms. Bauduy's room, Lauren Mueller. K.C. K.C. was a male sixth grade student in Ms. Bauduy's class. K.C.'s IEP specified that K.C. should always be supervised. It stated, "He requires continuous supervision as he is very impulsive and responds aggressively and or obscenely." K.C. also had a Behavioral Improvement Plan (BIP). It too noted a need for intensive intervention to address inappropriate touching of and advances toward female students. The BIP provided, among other things, "If outside the classroom, one on one supervision must be provided." The BIP went on to state that K.C.'s transitions out of the classroom should be limited to necessary transitions and that a staff member should provide one-on-one supervision during all transitions. Ms. Bauduy was aware of the contents of the IEP and BIP. At each day's end, Ms. Edoo usually escorted K.C. from class to the transportation loading area, after escorting her assigned student to the transportation area. This did not happen on September 11, 2018. This was one of the many days when Ms. Bauduy's room was short-staffed. Because of a vacant position and a paraprofessional not showing up, Ms. Bauduy was down to two adults, including herself, of the staff that should have been in the room. This excludes Ms. Edoo who was responsible for providing one-on- one care for a single student. The afternoon of September 11 the substitute paraprofessional was to escort the students, in shifts, to the transportation area. The substitute took a student to the transportation area and did not return. This left Ms. Bauduy the sole adult in the room, responsible both for getting the children to the transportation area and supervising students in the classroom. Ms. Edoo called Ms. Bauduy on the radio and said to release K.C. Ms. Bauduy thought that meant Ms. Edoo was returning to the classroom and would meet K.C. in the hall. Although her room had a telephone and a two-way radio, Ms. Bauduy knew from experience a response to a request for help would be slow, if there even was one. Faced with confounding choices, Ms. Bauduy explained to K.C. that she would release him to go directly down the hall to meet Ms. Edoo. K.C. did not go straight down the hall to Ms. Edoo, and Ms. Edoo was not in the hall. K.C. went to the bathroom that opened on the hall. A student, K.M., found K.C. laying naked, save for his socks, on the bathroom floor, masturbating. This scared and confused K.M. He went home and told his mother about the incident. She called the school. The next day a guidance counselor met with K.M. to discuss the incident and reassure him. Shortly after K.M. left for home, an ESE clerk, Elizabeth Elkholi, saw K.C. naked in the bathroom, through the open door. She called for Shantell Johnson, a behavior trainer. Ms. Johnson did not wish to enter the bathroom because K.C. was naked. A substitute, Stephen Harnishfeger, and Deputy Luna, a school resource officer, joined Ms. Elkholi and Ms. Johnson. Between them, these four adults kept K.C. in sight. K.C. got dressed in a stall. Ms. Johnson escorted him back to Ms. Bauduy's classroom. Ms. Bauduy was not aware of this activity until K.C. was returned to her room. K.C. could have left the school grounds during the period that he was unsupervised. Eventually the substitute reappeared and declared she was leaving for the day. Ms. Bauduy convinced the substitute to escort K.C. to the transportation loading area before leaving. The school suspended Ms. Bauduy for five days without pay for this incident. T.M. T.M. was a student on the autism spectrum that the school transferred to Ms. Bauduy's class in January. T.M.'s previous classroom, Ms. Franklin's, was adjacent to Ms. Bauduy's classroom. On February 25, 2019, the school had again failed to staff Ms. Bauduy's classroom in compliance with the requirements of her students' IEPs. That day the school required Ms. Bauduy to participate in an IEP meeting, scheduled for 30 minutes, during her planning period. The meeting took two hours, running through her lunch period and ending at 4:00 p.m. When Ms. Bauduy returned to the classroom, she realized none of her paraprofessionals had taken a break. So, she released them one at a time for a short break. While one paraprofessional was gone on break, the remaining one left the room with a student to go to the restroom and change a diaper. This left Ms. Bauduy alone with the students. At that time, Ms. Bauduy was providing directions to a group of students. She heard the door slam. She looked for T.M. and did not see him in the classroom. T.M. had slipped away from Ms. Bauduy's classroom out into the hall. He left through the classroom's only door. Ms. Bauduy immediately went to the doorway to look for him. She knew T.M. had a history of leaving the classroom but waiting just outside the door. She did not see him. Then Ms. Bauduy took a few steps outside the door of her classroom into the hall. To the left of Ms. Bauduy's classroom the hall met double doors just yards away that led to the outside and a nearby road. Ms. Bauduy was in the hall approximately 23 seconds seeking to ensure that T.M. had not gone to the left toward the double doors. During these 23 seconds there was no adult inside Ms. Bauduy's class room. She however was just feet from the only door. One of the students could have done something destructive or harmful. But the brief period of time that Ms. Bauduy was outside the classroom, her proximity to the door, and the very short distance she was from her students made that risk minimal. Ms. Bauduy saw the door to Classroom B104 close. This was T.M.'s former classroom, which was next to Ms. Bauduy's room. This reassured her that T.M. was safe. She ran back to her classroom. The students had spent the 23 seconds without incident. Then Ms. Bauduy called for assistance. A staff member came to return T.M. to Ms. Bauduy's room. When T.M. slipped away, Ms. Bauduy had no good choices. In the time it would take to call for assistance and wait for it to arrive, if it did, T.M. could have been out the doors and in the road. Ms. Bauduy's experience taught her that assistance was often slow to arrive and sometimes did not arrive at all. Stepping out in the hall to quickly see where T.M. went left the eight remaining students without direct adult supervision for 23 seconds. But Ms. Bauduy was just outside the only door out of the classroom. She made a reasonable choice, one that most reduced the risk of a bad outcome to T.M. and his classmates. The school suspended Ms. Bauduy for five days without pay because of this incident. F.O. F.O. was a student in Ms. Bauduy's class. F.O. was non-verbal and deaf. She was working on pre-academic skills. F.O. was a joyful and social student. She, however, was defiant. She did not like to be corrected. She wanted to be on her own, basically following her own schedule. When corrected, F.O. would shake her head, point her finger, and stick her tongue out. The school regularly delivered breakfast and lunch to the class. On September 11, 2019, F.O. ate breakfast around 10:00 a.m. After breakfast, F.O. and the other students had a short lesson and went to PE. After they returned to class, they had another short lesson. Afterwards, Ms. Bauduy gave the class another short break. Around 11:30 a.m., the lunch cart's arrival signaled the beginning of lunch to the class. The lunch service procedure began with placing meals on tables for students who could feed themselves. Then Ms. Bauduy and the paraprofessionals assisted students who needed help eating. F.O.'s lunch was placed in front of her. It was time for F.O. to pick up her toys and eat. She refused. Ms. Bauduy tried prompting F.O. several ways. Ms. Bauduy's efforts to persuade F.O. to put her toys up included gestures, pantomiming the desired actions, and modeling the actions by picking up some toys herself. This did not work. Ms. Bauduy took F.O. out of the classroom to see if a change in environment would help. Ms. Bauduy then took F.O. to the behavior specialist's classroom down the hall. But it was not staffed. They returned to Ms. Bauduy's classroom. There Ms. Bauduy tried to get F.O. to comply with simple directions like "put it down." F.O. would not respond. Also, F.O. continued to refuse to pick up her toys and eat lunch. Ms. Bauduy concluded that F.O.'s refusal to eat lunch was a defiance issue. Ms. Bauduy learned a behavior management strategy called "First – Then" in her applied behavior classes at the University of Central Florida. Ms. Bauduy kept a graphic depicting this strategy posted in her classroom. Other teachers and paraprofessionals in the school also used this strategy. It was a system where the "Then" was something the child wanted or wanted to do and the "First" was a task the child was resisting. After F.O. continued to play with toys and ignore her lunch. Ms. Bauduy decided to use the "First—Then" strategy by withholding F.O.'s lunch until she picked up her toys. She asked a paraprofessional, Ms. Lewis, to remove the food. Ms. Lewis refused. Ms. Bauduy then placed the lunch on a shelf so that other students would not eat it or play with it. Around 2:00 p.m., snack time, F.O. had put up her toys. Ms. Bauduy gave her the lunch. Ms. Bauduy's log for the day, sent home with each student each day, advised F.O.'s parents that F.O. would not listen or follow directions most of the day and that "lunch was delayed till she showed more compliance." Withholding lunch was not a proper use of the "First – Then" strategy. Meals are a regular part of the day and necessary for nutrition, although in this case the student repeatedly declined food. Withholding a meal, as opposed to withholding a treat, is not proper. Also, since F.O. was not interested in eating lunch, making lunch the "Then" was not a well-reasoned use of the strategy. Ms. Bauduy, however, did not withhold lunch as a punishment. But withholding lunch was not a reasonable behavior management strategy. The school suspended Ms. Bauduy for five days for this instance.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent, Yolie Bauduy, violated section 1012.795(1)(j), Florida Statutes, by violating Florida Administrative Code Rule 6A- 10.081(2)(a)1., and imposing a reprimand upon Respondent, Yolie Bauduy. DONE AND ENTERED this 24th day of November, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2021. Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at 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 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
The Issue Whether there is just cause to terminate the Respondent, Ronnie Bell (Respondent), from his employment with the Petitioner, Miami-Dade County School Board (Petitioner or School Board).
Findings Of Fact The Petitioner is the authorized entity charged with the responsibility to operate, control and supervise the public schools within the Miami-Dade County school district. Such authority includes the discipline of employees of the School Board. At all times material to the allegations of this case, the Respondent was an employee of the School Board. As an employee of the School Board, the Respondent was subject to the laws, rules, and terms of the union contract pertinent to employment with the Petitioner. Nick JacAngelo is the principal of Miami Coral Park Senior High School. Mr. JacAngelo was directly responsible for the employees at the school and personally knows the Respondent. The Respondent began work at Miami Coral Park Senior High School on October 11, 2004. Employed as a custodian at the school, the Respondent was responsible for cleaning the areas assigned to him. According to Mr. JacAngelo, it came to his attention that the Respondent’s work area was not being properly cleaned and maintained. On November 19, 2004, Mr. JacAngelo informed the Respondent that his work was substandard and unacceptable. Mr. JacAngelo informed the Respondent that his work would need to improve. Additionally, the Respondent was advised as to the standard of work that would be required and expected of him in fulfilling his custodial responsibilities including job attendance. A second conference was conducted with the Respondent on December 7, 2004, to again reiterate the duties and expectations for him. The Respondent did not improve his job performance. In addition to his failure to maintain his assigned area, the Respondent was excessively absent from the work site. On January 13, 2005, the Respondent was again informed of a need to improve his job attendance and work performance. Moreover, the Respondent was advised that he could not leave the work site without authorization prior to the termination of his workday. It was expected that the Respondent perform his duties and attend to his assigned area for the entire workday. The Respondent’s work performance and attendance did not improve. On January 28, 2005, the Respondent was cited for poor job performance and insubordination in his continued refusal to improve his effort. On February 14, 2005, Mr. JacAngelo met with the Respondent to address his insubordination, defiance of authority, failure to complete assigned areas of custodial responsibility, and his unauthorized departure from the work site. Because the Respondent wanted to have his union representative present during the discussion the meeting was rescheduled. The parties met on February 15, 2005, to review the items noted above. At that time, the Respondent was reminded that his workday departure time was 11:30 p.m. He was to present for work at 2:00 p.m., take no more than half an hour break for his meal, and remain onsite the entire time. The Respondent’s work performance did not improve over time. On May 12, 2005, he was observed to be in his vehicle the majority of the work shift. He did not perform his work assignment and made no explanation for his failure to clean his area. This incident was memorialized in a memorandum dated May 18, 2005. As to this and other previous incidents, the Respondent did not deny the conduct complained. Based upon the Respondent’s failure to improve, his continued poor work performance, his numerous opportunities to correct the deficiencies, and his insubordination, Mr. JacAngelo recommended that the Respondent be terminated from his employment with the school district. Mr. JacAngelo had attempted verbal counseling, written memorandums, and official conferences with the Respondent. None of the efforts to remediate Respondent’s work performance proved successful. Mr. Carrera is the principal at South Hialeah Elementary School. Mr. Carrera was the Respondent’s supervisor at a work assignment prior to his reassignment to Miami Coral Park Senior High School. According to Mr. Carrera, the Respondent constantly left his work site early, failed to clean his assigned area, and admitted to stealing a police surveillance camera (there had been 70 cases of theft in the area the Respondent was responsible for so the police set up a camera). In short, the Respondent’s work performance at South Hialeah Elementary School was unacceptable. The Respondent was warned during his tenure at South Hialeah Elementary School that continued failure to perform his work appropriately would lead to disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order dismissing the Respondent from his employment with the school district. S DONE AND ENTERED this 5th day of June, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 5th day of June, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronnie R. Bell 16220 Northwest 28th Court Miami, Florida 33054 Jean Marie Middleton, Esquire School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
Findings Of Fact At all times relevant hereto Joseph Testasecca, Respondent, held a Florida Teaching Certificate and was employed as elementary art coordinator in the Hillsborough County School District. He has been employed by the Hillsborough County school Board for 25 years, having begun as the first full- time art instructor in the Hillsboro County School System. Mr. Testasecca is 51 years old and has been married to his wife, Alicia, for 23 years. He is an active member of the Corpus Cristi Catholic Church in Temple Terrace, Florida. In 1970, Respondent was selected as one of eight instructors from throughout the county to teach a newly formed gifted student program. Students qualified for the program by having an IQ of 132 or higher. In 1973, the Hillsborough County School Board formed a Division of Performing Arts. Respondent applied for and was selected as coordinator of the Division, a position he holds to this date. His primary duties involve running an Arts in the schools' program throughout Hillsborough County and acting as liaison between the School Board and area art related organizations such as the Tampa Museum, the Tampa Bay Performing Arts Center, the University of South Florida and the Arts Council of Tampa. The majority of his time is spent outside the office working in the community. Throughout his adult life, Respondent has maintained a strong interest in the arts. He is an accomplished painter and has, with his wife, assembled a prize art collection of some 200 pieces which he keeps in his home. During the 1987-88 school year, Michael Bailey was a senior at Gaither High School and applied for enrollment in the executive internship program for the first semester. The internship program was designed to provide a means for seniors to gain practical working knowledge of the business world by serving as interns to various businesses in the community. Bailey was interviewed by Respondent for one of the internship programs as were several other students. Respondent's first and second choices opted to go with another teacher and, at the request of the coordinator of the program who was having trouble placing Bailey, Respondent selected Bailey to serve as intern in the arts program. The work schedule was roughly 9:00 a.m. to 4:00 p.m. each school day. Bailey's duties involved constant travel with Respondent from one location to another within the school district. Respondent treated Bailey as an equal and Bailey was very favorably impressed with Respondent. In fact, Bailey became possessive of Respondent's time and company and insisted on accompanying Respondent on trips and to meetings at which Respondent preferred Bailey not to be present. A luncheon birthday party for Theresa Solomon was held at Malio's Restaurant on October 22, 1987, sponsored by her supervisors which included Respondent. The luncheon was attended by Douglas Lerner, Respondent's assistant; Claudia Davidson, a music teacher; Solomon; Respondent and Bailey. Solomon had requested Respondent not invite Bailey because of the latter's tendency to monopolize conversation and his general boorishness. However, Bailey insisted that he be allowed to accompany Respondent to this luncheon. At the luncheon one of the attendees ordered a bottle of sparkling wine which was poured into five glasses by the waitress. When asked about being old enough to drink the wine, Bailey replied that his parents allowed him to drink and yes, he will have a glass. Bailey also made comments about his twin brother being an alcoholic. Respondent did not stop Bailey from having the glass of wine. During the luncheon, Bailey drank about half of one glass of wine poured for him. On October 23, 1987, a Friday, when interns attend regular classes, Respondent left a message with the secretary to advise Bailey on Monday morning, October 26, when he arrived at the office, to join Respondent at the Tampa Theatre. A superintendent of schools meeting was being held in Tampa, and Respondent was charged with taking some of these people on a tour that morning. The secretary was ill Monday, did not report to work, and Bailey did not get the message. Two witnesses, Doug Lerner and Betty Clark, testified that Monday morning, October 26, 1987, Bailey was quite upset because "Joe left me again." He was pouting, morose and refused to participate in any other projects offered. Bailey was heard by one or two to say regarding Respondent, "He'll get his." Respondent returned to the office just before noon and had to go to an elementary school that was being painted. He took Bailey with him at this time. After visiting the elementary school Bailey asked Respondent to show him Respondent's art collection. Since Respondent had food left over from a party the evening before he decided then to go to his house for lunch. While at Respondent's home, most of the incidents forming the basis of the charges here involved allegedly occurred. Bailey testified that Respondent approached him from the rear while he was standing in the living room and pressed his body against Bailey's body, than Respondent rubbed his shoulder and cheek and fondled Bailey's genitals. Shortly thereafter Respondent allegedly asked Bailey to sit on the couch along side him, but Bailey sat on a couch opposite and Respondent then sat on Bailey's lap and again stroked Bailey's face and/or shoulder. When little response was received from Bailey Respondent ceased and they departed. Respondent denies any such incidents occurred. Both Respondent and Bailey agreed that they stopped at Respondent's home for lunch. In his testimony, Bailey did not disagree that after leaving the office around noon they first went to the elementary school and then drove another 15 minutes to Respondent's house; that a quick tour of the art collection was held; that they had lunch; and that they left in time for Respondent to make his two o'clock appointment. According to Respondent they could not have spent more than 25 minutes at his home and that included the art tour, lunch fixing and eating. Under that scenario there was little, if any, time for peccadillos. Upon their return to the school that afternoon October 26, Bailey reported to Mrs. Dupereaux, the school board employee in charge of the intern program, that Respondent had made the improper sexual advances to which Bailey had testified. She cautioned him to be sure of his facts in view of the serious of the charge. Upon his arrival home Bailey went to his sister's house and related the incident to her. He then went to his girlfriend's mother who is president of the Gaither High School PTA and related the events to her. Later that evening he told his parents. While the fresh complaint lends more credence to the events as described by Bailey, on the other hand there is the reputation of Respondent who has taught in the Hillsborough County School System for some 25 years during which no similar incidents have ever been reported. No witness, other than Bailey, testified to any reason to suspect Respondent of ever having made homosexual advances to any other person. The following day, Bailey accompanied Respondent to the University of Tampa Museum, and upon their return to the office, Bailey testified Respondent put his arm around Bailey's shoulder and asked "What's the matter? Don't you want me to cream in your ass?" Respondent not only denies any such comment was made but also denies that such language would be used by a person in Respondent's generation. No further contact was made between Respondent and Bailey. In other areas, on which Bailey testified, his credibility suffers from his recollection of events as opposed to the facts as related by others. For example, his account of his actions at Malio's Restaurant differs sharply from the account by others present. Similarly, his recollection of his grade point average at Gaither High School was considerably higher than his actual grade point average as shown by school records. Bailey's behavior in attempting to monopolize Respondent's time and to intervene where he was not wanted is a factor somewhat equivocal in arriving at the ultimate fact regarding the alleged incident. Obviously, had Respondent been more forceful in maintaining the teacher-student relationship with the ultimate superiority in the teacher, Bailey would not have developed this possessiveness and feeling of equality which lead him to believe he had a right to accompany Respondent to all functions and to resent any rebuff. Finally, the fact that Petitioner attempted to introduce the results of a polygraph examination which Petitioner was fully aware are, absent stipulation, inadmissible in judicial or quasi-judicial proceedings, cast further doubt on the merits of Petitioner's case. This attempt to improperly influence a fact finder by proffering the results of a polygraph examination should not be condoned and should lead the fact finder to insure no improper inferences are drawn from such information.
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 Whether just cause exists for the proposed disciplinary action against the Respondent.
Findings Of Fact At all times material to this case, Cheryl McDonough (Respondent) was employed by the Pinellas County School Board (Petitioner) under a professional services contract. The Respondent was initially employed as a teacher by the Petitioner in 1987. On December 11, 1989, the Respondent received a written reprimand from the Assistant Principal at Northeast High School for using poor judgement by displaying anger when dealing with inappropriate student behavior. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Northeast High School until budgetary considerations led to her transfer to Osceola High School. On January 13, 1992, the Respondent received a written reprimand for using poor judgement by displaying anger and using vulgar language when dealing with inappropriate student behavior at Osceola High School. The reprimand was issued by the School District Director of Personnel Services. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Osceola High School until her position was eliminated for fiscal reasons. On February 14, 1994, the Respondent received a written conference summary from Joann Andrews, Principal at Azalea Middle School, where she had become employed. The summary notes that alcohol had been detected on the Respondent's breath during school hours. The Respondent denied the allegation. On April 20, 1994, the Respondent received a written school memorandum from the Assistant Principal at Azalea Middle School for smoking in an inappropriate area on school property. In the summer of 1994, the Respondent was transferred to the district service center where she worked until gaining employment at Lakewood High School in the fall of 1994. By letter from the Superintendent of Pinellas County Schools dated July 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be suspended without pay for ten days. The basis for the recommendation were allegations that the Respondent made disparaging remarks to a student and his mother in front of other students, that the Respondent had the odor of alcohol on her breath, and that the Respondent made derogatory remarks about another teacher to other students and had attempted to disrupt the other teacher's class. On September 13, 1994, the School Board issued a Final Order suspending the Respondent without pay for five days based on the allegations set forth in the July 7 letter. The Final Order was issued pursuant to a settlement agreement reached by the parties. During the 1994-1995 school term, the Respondent was employed as a teacher at Lakewood High School. During a Lakewood faculty meeting on August 23, 1994, the smell of alcohol was detected on the Respondent's breath. During a Lakewood "open house" in September, 1994, the smell of alcohol was detected on the Respondent's breath. During the first semester of the 1994-1995 school term, several students smelled the odor of alcohol on the Respondent's breath. During the first semester of the 1994-1995 school term, the Respondent used vulgar language including "damn," "hell," "shit," "bitch," and "fuck" in the classroom and within the hearing range of students. During the first semester of the 1994-1995 school term, the Respondent used demeaning language towards students in her classroom, calling them "brats" and "dumb," and stating "you are the worst class" and "you will never amount to anything." The Respondent told her sixth period class that she would kill them if she thought she could "get away with it." On more than one occasion, the Respondent became frustrated by the class behavior. She would give the class a "work assignment" and would refuse to teach. There is no credible evidence that the "work assignments" were part of any prepared teaching plan or were otherwise utilized as instructional resources. During the first semester of the 1994-1995 school term, the Respondent physically separated her fourth period class into two groups which she identified as "learners" and "non-learners." A row of empty desks was used to divide the students. During this episode, the Respondent refused to teach the group she called "non-learners." After receiving complaints from students about the division, an official at the school visited the Respondent's class and directed her to reunite the class. By letter from the Superintendent of Pinellas County Schools dated November 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be dismissed. The basis for the recommendation were allegations as follows: the Respondent used profanity and demeaning language towards students on numerous occasions; the Respondent had alcohol on her breath while at school on two occasions; the Respondent stated to her sixth period class that she would kill them all if she could get away with it; and that the Respondent separated students into two groups within the classroom setting and taught only half the class. The Respondent requested a formal administrative hearing which is the basis for this Recommended Order. At the hearing, the Petitioner's expert witnesses opined that the allegations, if established to be true, were of sufficient seriousness to impair her effectiveness as a teacher.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Pinellas County School Board enter a Final Order terminating the employment of Cheryl McDonough. DONE and RECOMMENDED this 20th day of June, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6983 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 10. Rejected, correct year is 1994. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected as to use of medication. The greater weight of credible and persuasive evidence fails to establish that the Respondent took the medication at the times when the odor of alcohol was detected on her breath. Immaterial. The evidence fails to establish that the students in the classes taught by the Respondent are responsible for her behavior therein. 6-11. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 14. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 15-16. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. Rejected. The Respondent does not recall making the statement so her explanation of her intent is speculative. As to the cited testimony of Ms. Hanes, it is immaterial because the statement is not "in and of itself" the sole event warranting termination. 19-21. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, immaterial, no related allegation. Rejected, immaterial Rejected, immaterial. Classroom management "techniques" are not the sole cause warranting termination. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County Post Office Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 Marguerite Robinson, Esquire Kelly & McKee Post Office Box 75638 Tampa, Florida 33675
The Issue The issue in this case is whether just cause exists to terminate Respondent's employment with Petitioner based on alleged incompetence under section 1012.33, Florida Statutes (2011),1/ as defined by Florida Administrative Code Rule 6A-5.056; and/or whether termination of employment is warranted because Respondent failed to correct performance deficiencies under section 1012.34(3).
Findings Of Fact Based upon the evidence and testimony presented at final hearing, the following Findings of Fact are made: The Board is responsible for hiring, firing, and overseeing all employees at Bayside, Lockmar, and other schools in Brevard County. At all times relevant hereto, Respondent was an art teacher in the Brevard County school system. Respondent worked at several different schools in Brevard County, including Bayside, Lockmar, Sea Park Elementary, Endeavor Elementary, and Indialantic Elementary. He taught at Bayside from 2003 until 2010, and then was transferred to Lockmar for the 2010-2011 school year. Respondent was given an annual evaluation each year at the school where he was teaching. Annual evaluations are used for the purpose of reviewing and critiquing a teacher's performance in the classroom. An annual review determines whether the teacher is "effective," "needs improvement," or "unsatisfactory" for the school year at issue. While at Bayside, Respondent's annual evaluations were generally "effective," meaning he was teaching in a fashion deemed satisfactory by the administrators. Mr. Tuttle, the principal, considered him an effective teacher, but he did not personally perform Respondent's evaluations. The evaluation for school year 2007-2008 was somewhat restrained in nature, describing Respondent as "an effective art teacher who satisfies all teacher competencies" and that he "demonstrates an acceptable level of knowledge of the subject matter." In the 2008-2009 school year at Bayside, the new principal, Mr. Novelli, began to have doubts about Respondent's teaching abilities and also about his mental health. Several incidents were reported to Novelli concerning Respondent that made Novelli very concerned. As a result, Novelli began to keep an eye on Respondent and did more frequent "walk-throughs" of Respondent's classroom. Walk-throughs by administrators are an accepted means of gathering information about the teacher and his or her teaching practices. At the end of the 2008-2009 school year, Respondent was given an evaluation that deemed him "effective" as to his overall performance as a teacher. The evaluation describes Respondent in exactly the same words used in the prior year's evaluation form. The effective evaluation was issued despite an incident that occurred at the end of the school year, to wit: The parent of a student contacted Novelli and reported that Respondent had kept the student's art project, refusing to return it to the student. Respondent told Novelli that he kept the project because the student had failed to pay for a canvas; Novelli found that excuse to be inaccurate. The parent said Respondent had asked the female student to pose for him after school and had given the student his cell phone number. Novelli ordered Respondent to return the art project, which he did. Respondent then allegedly began asking other students if the art student was pregnant. When Novelli asked Respondent about the student, Respondent became "very hostile, very loud, very emotional, and [he] started yelling, 'I'm not a pedophile; I don't sleep with my students; I don't do drugs, you can call the American Fence Company and ask them. I've had a drug test with them.'" These unsolicited, random comments by Respondent caused Novelli even greater concern about Respondent's mental well-being. The next school year, 2009-2010, Novelli did an interim evaluation of Respondent. Interim evaluations are done when administration believes a teacher is struggling or having serious issues which impede his or her performance. The interim evaluation was done at the end of October 2009 and indicated several areas of unsatisfactory performance by Respondent, including: Planning; Instructional Organization and Development; Presentation of Subject Matter; Responsibilities; and Student Evaluation. Respondent refused to sign the evaluation form, even though a signature does not equate to acceptance of the evaluation, it simply acknowledges that the evaluation has been discussed with the teacher (which it had been). Principal Novelli observed Respondent's classroom on several occasions and found the activities going on to be inconsistent with the lesson plans for that day. Respondent explained that the words he had written on the white board (in one case, the words "Van Gogh") were his lesson plan for the day. That was not acceptable, because lesson plans should be sufficient for another teacher to utilize to teach the class in the regular teacher's absence. Some of the problems in the area of responsibilities noted in the interim evaluation were: failing to timely provide administration with a list of students who could be identified as advanced placement candidates; failing to provide acceptable contributions of his students' art work for a poster design contest; and failing to submit art work for a proposed field trip timely and appropriately. Respondent was found to have a difficult time communicating with school administrators, guidance personnel, and fellow teachers. It became abundantly clear at final hearing that Respondent would be as uncooperative and recalcitrant as possible when talking to people he did not like. His demeanor demonstrated a strong resentment of his principal and others from Bayside. In the area of student evaluations, Respondent was found to have failed to provide daily participation grades to his students, despite saying he would do so in his course outline. All of his students received an "A" grade for one nine-week period. Novelli found those grades to be inconsistent with the observations he had made in the classroom. As for instructional organization, Novelli observed no substantive instruction going on during his classroom visits. Respondent explained that students were free to stay busy working on projects discussed in prior classes, so it might appear to an outside observer that they were not being instructed. However, there was insufficient evidence produced to substantiate Respondent's position in that regard. A Professional Development Assistance Plan (PDAP) was created for each of the areas of concern set forth in the interim evaluation. PDAPs are tools used to assist struggling teachers to find a way to overcome their shortcomings and improve in the areas of concern. On January 7, 2010, Novelli met with Respondent to go over the PDAPs and discuss Respondent's progress. Respondent refused to sign the PDAP forms. Thereafter, although he was given additional time to comply with the PDAPs' requirements, Respondent failed to follow all of the recommendations set out in the plans. For example, one of the recommendations for assistance involved Respondent going to observe another art teacher in their classroom. Novelli wanted Respondent to observe an art teacher selected by the district resource teacher, but Respondent preferred to observe a teacher (Leah Andritz) with whom he already had a friendship. Novelli felt that Respondent's observing his friend teach would not be as helpful as watching someone Respondent did not know. Novelli offered Respondent paid time off to observe the school-chosen art teacher. Ultimately, Respondent went to observe Andritz on his own time, rather than accept Novelli's offer. Respondent's annual evaluation was completed on February 12, 2010. Three areas (also called "strands") were graded as unsatisfactory: Instructional Organization and Development; Presentation of Subject Matter; and Student Response. The evaluation also graded Respondent as Needs Improvement in the areas of Planning and Responsibilities. The overall evaluation was unsatisfactory. A meeting was set for February 18, 2010, to discuss the evaluation. Assistant Principal Capalbo, whom Respondent trusted, was sent to escort Respondent to Novelli's office for the meeting. On the way from Respondent's classroom to the principal's office--which took three or four times longer than usual, because Respondent was making phone calls along the way--Respondent called and spoke to his union representative. The representative then came to the meeting as well. Respondent made numerous derogatory remarks and complaints about Novelli on the way to the meeting. He said Novelli had tried to have him arrested, had vandalized his car, and had attempted to engage in sexual relations with a married teacher.3/ There is no credible evidence that any of the allegations were true, but they made Capalbo wonder if Respondent was having mental issues. At the meeting, Respondent accused Novelli of recording a prior meeting by way of a USB pen. Respondent angrily threatened to file a lawsuit against Novelli and report him to the superintendent of schools. Each of the attendees at the meeting who testified at final hearing said Respondent became very agitated and angry. The union representative (who did not testify at final hearing) was ultimately able to get Respondent under control and persuaded him to leave the meeting. No credible evidence was provided to prove the existence of a USB pen or that meetings had been recorded. Respondent again refused to sign the evaluation form. As a result of Respondent's conduct at the meeting, Novelli placed him on paid administrative leave pending a review of his mental health and fitness for duty. He was on leave for about one week and returned after undergoing a psychological evaluation. A significant dispute arose between Respondent and Novelli concerning an event known as National Portfolio Day. The event was a special opportunity for art students that allowed them to have their art reviewed and to speak with representatives from several colleges and art schools. Respondent had taken students to the event in prior years. In the 2009-2010 school year, Respondent requested permission to take a number of his students and students from other schools to the event. His request was preliminarily approved by administration, pending several details being worked out. However, the permission was ultimately withdrawn, and no students from Bayside were allowed to attend. Respondent claims that the event was a valuable tool for students and had allowed many students to obtain significant scholarships to colleges in prior years. Novelli found out that the students from other schools who were going to the event were Advanced Placement (AP) students. Bayside did not have an AP program or any AP students.4/ Novelli asked Respondent to put together portfolios for the students he wanted to attend, and Novelli would get the artwork examined by an expert to see if the students were viable candidates for the event, even if they were not technically AP students. Respondent was given a deadline to get the student art portfolios to Novelli so they could be taken to the district office by a date certain. Respondent missed the deadline. Instead, Respondent personally hand-delivered the portfolios to the district office on the day they were due. The artwork was reviewed by an art expert who deemed the work to be inadequate for inclusion in the National Portfolio Day event. She rated the art at the lowest level of a five-tiered rating system. As a result of the art expert's review, Respondent was advised that no students from Bayside would be going to the event. Notwithstanding that decision being communicated to Respondent, he continued to act as if Bayside students would still be attending. He continued making transportation arrangements and notifying students' parents of the impending event. There were several unexplained emails admitted in evidence that show some continuing dialogue about the portfolio trip. The emails addressing this issue create some confusion as to whether Bayside students would be able to attend, but ultimately none attended. At the end of the 2009-2010 school year, Respondent was transferred to Lockmar. Although he had requested a transfer from Bayside, Respondent was extremely upset about the transfer. According to Respondent, he wanted to go to another high school where his former principal, Tuttle, was now the principal. The director of Human Relations Services, however, was told by Respondent's union representative that Respondent wanted to go to an elementary school. Tuttle said that his school's position had already been filled anyway. The principal at Lockmar (Hostetler) did not know at the time of the transfer that Respondent had received an unsatisfactory performance evaluation for his last year at Bayside. When she found out, she issued a memorandum (dated August 5, 2010) informing Respondent that he was on probation for a period of 90 days. The probation status, also called performance review, is essentially the same thing as a procedure called NEAT, except that a performance review is supposed to be completed within 90 days. That is, the teacher has 90 days to show improvement in the delineated areas of concern. It is not uncommon for a teacher to be placed on performance review following an unsatisfactory annual evaluation. As part of the performance review process, Hostetler frequently went into Respondent's classroom to observe his teaching style. Her visits would last the majority of the class period. She would visit classes of different grade levels and students in order to see how Respondent handled various age groups. After approximately eight weeks of reviewing Respondent, Hostetler issued an interim evaluation. That evaluation rated Respondent unsatisfactory in four areas and needs improvement in another area. Once again, Respondent was deemed to have unsatisfactory lesson plans. His instructional organization and development was again deemed deficient, as well as his presentation of subject matter. Further, he was found to be unsatisfactory in the area of responsibilities under the professionalism strand. The overall evaluation for Respondent was unsatisfactory. The evaluation was reviewed with Respondent on October 1, 2010, but he refused to sign it. On that same date, a number of PDAPs were created to help Respondent address his deficiencies. Respondent was given until December 10, 2010, to take steps to improve in the various areas. Later, when it became clear that he would not be able to meet that deadline, the PDAPs were extended to February 18, 2011, then to March 18, 2011, and then extended again to March 23, 2011. At least one of the extensions was done because Respondent was preparing his classes for an upcoming art show. On March 23, 2011, Hostetler completed Respondent's annual evaluation. It included three unsatisfactory scores and two scores of needs improvement. The overall evaluation was unsatisfactory, his second unsatisfactory evaluation in two years. Once again, Respondent refused to sign the evaluation form. There was considerable testimony and evidence presented at the final hearing concerning Respondent's tenure at Indialantic Elementary School from 1998-2002, some ten years prior to the final hearing. In his last performance evaluation at Indialantic, Principal Strong had given Respondent an overall unsatisfactory ranking. Although Respondent's performance at a different school so many years prior to the instant allegations may not be dispositive of anything in this case, it is noted that Respondent's administrators at that time had many of the same concerns as those raised by Novelli and Hostetler years later. Besides the on-going issues with less than satisfactory performance ratings, Hostetler had other concerns about Respondent as well. One issue had to do with Respondent sending children outside the classroom and instructing them to "look for dinosaurs." His intention was to keep the children from disrupting the class by their bad behavior. The instruction to look for dinosaurs was just a way of making the student sit and contemplate their behavior. Respondent claims to have learned the technique during training he took through a program called Sun Coast Area Teacher Training. Respondent maintains that he kept visual surveillance of the children when they were outside; the teacher in the adjoining classroom said he could not really do that and maintain contact with his other students. Nonetheless, it does appear that the children were belittled by their peers when they were sent outside to look for dinosaurs. Lockmar had been asked to take part in a contest sponsored by the local police department. Students were to draw pictures within certain parameters that would allow the pictures, if chosen, to be converted to magnets or other items. Respondent was supposed to have the children draw pictures related to a theme of policemen as peace keepers, then select appropriate pictures to submit for consideration by the judges of the contest. Respondent did have his children make drawings, but almost all of them failed to meet the stated size and content parameters. He then asked personnel in the front office to voice their opinion as to which drawings he should submit. Feeling uncomfortable making a decision such as that, the staff handed the drawings over to Hostetler. She ultimately found only three or four worthy of submission for the contest. Hostetler received complaints from other teachers that their students were not ready to leave the art classroom in a timely fashion. They complained that Respondent did not have them ready to go when the art period ended. Hostetler issued a memorandum to Respondent about addressing that issue appropriately. During the period of time Respondent was under performance review and addressing the PDAPs, he was assigned a peer mentor teacher, John Hays, to assist him deal with deficiencies. Hays worked with Respondent from September 2010 through May 2011, including approximately 15 on-site visits to the classroom and one visit with Respondent to another school's art classroom. Respondent made a few improvements during the time Hays worked with him, including upgrading the kiln, putting student drawings in the front office, and becoming more cooperative with others. However, Hays found that the classroom, as managed by Respondent, was not conducive to learning. The lesson plans did not comport with what was going on in the classroom, even though Respondent usually had an explanation for that, e.g., a special project was coming up and students needed to pay more attention to it than to what the lesson plan described. Hays seemed to doubt whether Respondent's reasons or explanations were entirely truthful. All in all, Hays did not see significant improvement by Respondent in most of the problem areas that were being addressed.5/ When Respondent left Lockmar, he was given the opportunity to retrieve all his personal property. At the beginning of the next school year, the new teacher in the art room discovered several pictures belonging to Respondent in the pod (office area) adjacent to the classroom. Some of the pictures were somewhat disturbing to the new teacher, so she turned them over to her principal, who turned them over to the School Board security office. The pictures depicted a person who looked much like Respondent and contained words and images that were not appropriate for elementary school-aged children (and possibly not even high school-aged children). Respondent testified that some of his high school students had made the drawings, but he would not say that the pictures were supposed to depict him (despite one being labeled "The Mighty O." Respondent was often referred to by students and teachers as "O.") Respondent admitted that the drawings were not appropriate for viewing by young children. There is, however, no evidence that any elementary school children ever saw or had access to the pictures. Respondent made some extremely unusual allegations about his prior principals, Strong and Novelli. He said Strong was responsible for Respondent's girlfriend having a miscarriage, that Strong had intentionally caused that to happen, and that he was afraid Strong may do the same thing to someone else. He said Strong had tried to poison him by placing contaminated mulch around his portable classroom building. He said Novelli had caused him to be arrested by sabotaging Respondent's car so that he would be pulled over by police and illegally searched. He made the allegation about Novelli secretly recording meetings. He alleged that Novelli was involved in either killing or damaging the careers of teachers he did not like. Respondent requested leave to pursue a doctorate degree, but the leave was denied. Immediately thereafter, Respondent re-filed his leave request, citing medical issues. He said he used the leave to, in part, pursue his doctorate, but did not adequately explain the suspicious request for medical leave. The leave request was supported by a note from a chiropractor indicating Respondent had back problems. The note did not verify Respondent's allegation that Strong was poisoning him at Indialantic (a claim raised in Respondent's deposition and final hearing testimony). There was no credible evidence to support the various claims Respondent made against his administrators, leaving the impression that the allegations are baseless. However, there was no direct showing by the School Board as to how these incredible stories directly affected Respondent's capabilities as a teacher. Respondent showed that he could be evasive and obstinate concerning the admission of even the least significant facts. He seemed reluctant to engage in conversation that was not full of innuendo, suggestion, or intrigue. For example, when asked whether he really believed his principal would vandalize his car (as Respondent had alleged), Respondent answered, "Because other teachers in the district, you know the Greek mythology Cassandra, how Cassandra would foretell the future? Other teachers in the district, as the Greek mythologist Cassandra, would forewarn me of Mr. Novelli's prior actions." When asked repeatedly if he believed another principal was interfering with his purchase of a building, Respondent replied, "I was very cautious with the information." When asked what that meant, he said, "It was worth investigating and finding out more." When asked if Principal Strong was responsible for Respondent's girlfriend losing her baby, he responded, "My answer to that is it's an unfortunate situation" and "I have a child that I wish was born and because of the politics, it is not here." Other than Tuttle's restrained endorsement of Respondent, no fellow teachers or administrators were presented to prove or suggest that Respondent could work well with others. Hays said Respondent was cordial to him, but he was not a co-worker or administrator. Respondent seems to be very eager to assist his students as they prepare for life after grade school. He seems to enjoy teaching and wants to return to the classroom. At least two parents of his former high school students endorsed Respondent as an important reason for their child's success. Respondent said he had helped some students obtain scholarships to assist with their college education, although there was no substantive proof of that fact. In his written response to the 2009-2010 evaluation, Respondent stated he would "produce over $300,000 . . . in independent scholarships for [his] students." Although he testified several times about the scholarships he could generate for his students, there was no credible evidence to support his assertion. (The response to his evaluation was well written and rational. It was not comparable to Respondent's way of orally expressing himself, at least as evidenced by his testimony at the final hearing.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Brevard County School Board, terminating the employment of Respondent, Mark Ostermeier, for just cause. DONE AND ENTERED this 25th day of June, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2012.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates, as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2017). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2017). Respondent holds Florida Educator's Certificate 880641, covering the areas of Middle Grades Integrated Curriculum, Physical Education, Social Science, and Exceptional Student Education (ESE), which is valid through June 30, 2022. At all times pertinent hereto, Respondent was employed as an ESE teacher at GHS in the Alachua County School District. Respondent began his teaching career at GHS in 2002 teaching ESE classes. The incident that forms the basis for this proceeding occurred on May 12, 2016, during the 2015-2016 school year. Teachers employed by the Alachua County School Board are subject to the Collective Bargaining Agreement between the Alachua County School Board and the Alachua County Education Association, the local teachers’ union. Article IX, Section 21(a), of the Collective Bargaining Agreement, which was in effect during the 2015-2016 school year, provides that: Subject to the approval of the principal or his designee, a teacher may leave the campus of his particular school if appropriate arrangements are made to insure that students are not left unsupervised. Approval is required for each circumstance or situation. The principal or his designee will not unreasonably deny such a request. A teacher will use this privilege only in unusual circumstances. At the beginning of each school year, before students report, a faculty pre-planning meeting is held at GHS to go over information provided by the school district. Supervision of students is among the topics of discussion, and teachers are advised that they are not to leave students unsupervised in their classrooms. The reason for the instruction is obvious -- GHS, being responsible for the safety of its students, should take all reasonable measures to ensure their safety on campus. In addition to the instruction provided at the pre- planning meeting, GHS sent periodic emails to teachers throughout the year reiterating that students were not to be left unsupervised in classrooms. On April 5, 2016, an email was sent directed to the general problem of unsupervised students “walking around A, B, and C hallways” during the lunch periods. The email noted that some teachers allowed students to come to their classrooms during the lunch period for mentoring, which was recognized as a laudable activity. One teacher responded the next day expressing appreciation for the reminder, noting that “[t]here are students all over upstairs in A & B wings. They also hang out in the stairwells, especially on the West end.” On April 7, 2016, Mr. Shelnutt sent an email to all teachers reiterating that it was “fantastic” that teachers allowed students in their classrooms during the lunch period, but that students were not to be “roaming around.” The email emphasized that “if you chose to allow students in your classroom during your lunch, you are assuming responsibility for supervising them.”2/ During the lunch shifts, school employees were routinely stationed in areas where general education students were allowed to eat lunch in order to provide adult supervision while their teachers took their 30-minute lunch break. As will be described herein, ESE students were subject to a different lunchtime regimen. During the 2015–16 school year, Respondent was assigned to teach a self-contained class of 4 to 7 students with intellectual disabilities. The “self-contained” setting means that students generally remained in the Gaines building on the GHS campus with other students with disabilities. Respondent’s students were intellectually disabled, but functioned at a higher level than their ESE peers in other classrooms, who had more severe disabilities. Respondent’s students identified more with general education students, and were much more likely to interact with general education students than with those in the other ESE classrooms.3/ The Gaines building was a “community of classrooms,” in that a teacher could request and receive assistance from teachers or paraprofessionals in the other two classrooms in the building. The ESE classrooms surround a small courtyard at the Gaines building. The courtyard has a table and seating, and students would most often sit there to eat their lunch. One of the three ESE teachers usually oversaw the courtyard, and the courtyard could be seen from the ESE classroom windows. There is also a basketball court and track behind the Gaines building, which were occasionally used by ESE students before and after school, and during lunch period. The school day at GHS has six periods. Respondent taught ESE students for five of the six daily periods. During the period when Respondent’s ESE students were at their P.E. class, Respondent was assigned to teach a general education history class. Mr. Shelnutt indicated that “[e]very teacher [at GHS] should have a 30-minute duty free lunch in addition to a planning period.” Mr. DeLucas testified that Respondent was in “a very unique situation. The other self-contained rooms had multiple paraprofessionals. He did not have multiple paraprofessionals.”4/ Consequently, Respondent was the only teacher in his classroom and was assigned students every period of the school day with no planning period. Because of the circumstances, if it became necessary for Respondent to leave the classroom, he would ask one of the teachers or paraprofessionals from the other ESE classrooms to watch his class. Unlike the situation that was the subject of the April 5, 2017 and April 7, 2017, emails referenced above, which appears to describe a general education student lunch period, ESE “self-contained” students were allowed to get their lunches and then return to their classrooms, to avoid the crowds and the lines. It was apparently not uncommon for special needs students to go to the cafeteria during the 20-minute break between the end of A-Lunch at around 11:55 a.m. and the beginning of B-Lunch at 12:15 p.m. when there is not a standard lunch shift. Respondent’s only break in the school day was during his students’ lunch period, from 12:15 p.m. to 12:45 p.m. Since ESE students typically had lunch in the Gaines building courtyard or their classrooms, even Respondent’s “duty free lunch” was not free of duties. On May 12, 2016, Respondent released his students -- which on that day were only B.S., B.H., and N.C. -- around 12:05 p.m. to get lunch from the cafeteria. Respondent’s students had been watching a movie, and wanted to finish the movie during the lunch period. Respondent agreed to let the students return to his classroom to finish watching the movie. Before the students returned to the classroom, Respondent received a telephone call from the baseball booster club president regarding an upcoming banquet. When the students returned to the classroom, Respondent continued the telephone call outside. When Respondent ended the telephone call, he realized that the lunch period was “counting down.” Respondent left the Gaines Building, with the students unattended in his classroom, and drove to a sandwich shop several blocks away. There was no explanation as to why Respondent did not ask one of the other ESE teachers or paraprofessionals to watch his classroom. During Respondent’s absence from the classroom, another of Respondent’s students, J.H., entered the classroom and saw male ESE student, B.S., emerging from a storage closet in Respondent’s classroom, and thereafter discovered female ESE student, B.H., in the closet crying. J.H. went to the office and told Ms. Conyers what he had seen. Ms. Conyers radioed for a dean or an administrator to report to Respondent’s classroom. Ms. Gantt and Mr. Bauer arrived at the classroom at about the same time. Ms. Gantt questioned B.H. as to what had happened, and Mr. Bauer went to the nearby basketball court where B.S. had been reported to have gone. B.H. and B.S. were taken to the Dean’s office for questioning. At some point after Ms. Gantt and Mr. Bauer arrived at Respondent’s classroom, and approximately 15 minutes after his departure from campus, Respondent returned from the sandwich shop. There was considerable evidence devoted to the events that occurred in Respondent’s classroom closet during his absence. All of the evidence was hearsay. However, what was established (and agreed upon) is this: On May 12, 2016, while Respondent was absent from his classroom, during which time students were left unsupervised in the classroom, an event occurred that was of sufficient severity that the police were called in, that the police conducted an investigation, and that the police ultimately completed a sworn complaint charging B.S. with lewd and lascivious molestation of B.H. Alachua County Public Schools charged Respondent with violating school board policies regarding student supervision, specifically a policy that required teachers to obtain the permission of the school principal before leaving school campus, and recommended his termination from employment. Respondent contested the recommendation of termination. On February 16, 2017, the Alachua County School Board, the Alachua County Education Association, and Respondent executed a settlement agreement, providing that: (1) the superintendent would rescind the recommendation for Respondent’s termination; (2) Respondent would take an unpaid leave of absence beginning March 1, 2017, until June 6, 2017; Respondent would agree to complete Safe Schools online training regarding classroom supervision and school safety; and upon completion of the Safe Schools training, Respondent would be returned to paid status as an employee of Alachua County Schools. Respondent fulfilled the terms of the settlement agreement and, with regard to the Safe Schools training, exceeded the required courses. For the 2017–2018 school year, Respondent has been assigned as a P.E. teacher at the Sidney Lanier Center, a K-12 public school in Alachua County. Sidney Lanier is a specialized school for ESE students. The principal of Sidney Lanier was aware of the events of May 12, 2016, when Respondent was assigned. It should be acknowledged that Respondent taught ESE classes at GHS for 14 years without incident. He had no prior discipline and received uniformly good evaluations. He was well regarded as a teacher and a coach, and was generally acknowledged to have had a positive impact on students’ lives. Respondent expressed genuine remorse about leaving students unattended in his classroom, and credibly testified that he would never again do so. The incident did not involve Respondent denigrating or disparaging students, or improperly or abusively making physical contact with students. Nonetheless, Respondent violated a clear and direct requirement that he not leave students unattended. Although he believed his students would not engage in the activity described, such action on the part of a high school student was certainly not unforeseeable. There was conflicting evidence as to whether B.H.’s mental health was actually affected by the incident. A preponderance of the evidence indicates that it had some negative effect. However, rule 6A-10.081(2)(a)1. “does not require evidence that Respondent actually harmed [a student]'s health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; Fla. EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, though without specific intent or malice, failed to make reasonable effort to protect his students from conditions harmful to their mental or physical health, or safety, pursuant to rule 6A- 10.081(2)(a)1.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated rule 6A-10.081(2)(a)1. It is further recommended that Respondent’s educator’s certificate be suspended for a period of 30 days, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension, which penalty is within the range of penalties established in rule 6B-11.007(2). DONE AND ENTERED this 21st day of November, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2017.
