The Issue Respondent's alleged violation of Monroe County District School Board Policy Rule 2.5.1 on or about January 8, 1976, by possession of marijuana on school grounds.
Findings Of Fact Respondent is a 16 year old, 11th grade high school student attending Marathon High School, Marathon, Florida. On January 8, 1976, Respondent was found in possession of 32 grams of marijuana on the grounds of Marathon High School. (Stipulation of the Parties) On April 21, 1976, the Circuit Court of Monroe County, Florida, accepted Respondent's plea of guilty to a charge of possession of marijuana, withheld adjudication as a delinquent and placed him on probation for a period of six months under the supervision of a Youth Counselor, State of Florida Youth Services Division. Conditions of probation included a curfew, weekly meetings with the counselor and part-time employment while attending school. (Testimony of Seale) At the time of his apprehension, Respondent admitted possession of marijuana to authorities and cooperated with them by divulging its source. Respondent denies any prior arrests and, in the opinion of the Youth Counselor, he is not likely to commit an offense of this nature in the future. He has evidenced remorse and desires to continue attendance at the high school. The Youth Counselor feels that it would serve no useful purpose to prevent him from further attendance. (Testimony of Seale, Collins) Respondent is not a problem student nor is he considered to be incorrigible or a socially maladjusted child. An alternative to expulsion exists at Marathon High School in the form of a rehabilitative program for socially maladjusted children that is supervised by one instructor who exercises close supervision over the students in the program. A student who is expelled from high school may enter an evening adult education program whereby he can acquire necessary academic credits by attending evening classes. The principal of Marathon High School recommends that Respondent be expelled because of the seriousness of his offense as evidenced by the unusually large amount of marijuana. (Testimony of Gradick)
Recommendation That Respondent, Gordon Collins, be expelled from Marathon High School, Marathon, Florida, effective June 8, 1976, for violation of Monroe County District School Board Policy Rule 2.5.1, by possession of marijuana on the school grounds on or about January 8, 1976. DONE and ENTERED 14th day of May, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1976. COPIES FURNISHED: Glenn Archer, Jr. Assistant Superintendent Post Office Drawer 1430 Key West, Florida 33040 Peter Lenzi, Esquire Post Office Box 938 Marathon, Florida 33050
The Issue The issue for determination is whether Respondent should be suspended without pay and terminated from employment with Petitioner.
Findings Of Fact Mr. Gonzalez was a non-instructional employee with the School Board at Liberty Park Elementary School (Liberty Park), employed as a Paraprofessional II. Prior to that position, he was employed as an Instructional Technologist Specialist at Liberty Park. Before working at Liberty Park, Mr. Gonzalez was employed with the School Board at S.D. Spady Elementary School (S.D. Spady) as an Instructional Technology Assistant for approximately 90 days. He was responsible for the computer hardware and software at S.D. Spady, including maintaining the inventory and repairing the hardware and software. During Mr. Gonzalez’s probationary period at S.D. Spady, the principal gave him a computer to place in the Exceptional Student Education (ESE) Department. Before the end of his probationary period at S.D. Spady, Mr. Gonzalez was released from his employment by the principal. The principal was having continuous problems with him; many times, Mr. Gonzalez was not coming to work or calling- in to advise that he was not coming into work, and the principal could not locate him. After Mr. Gonzalez was released by the principal at S.D. Spady, the principal discovered that the computer was never delivered to the ESE Department. The computer was never seen at S.D. Spady again. Subsequently, Mr. Gonzalez was employed at Liberty Park. During his tenure at Liberty Park, the principal requested an investigation by the School Board’s School Police Department (School Police) of Mr. Gonzalez regarding a parent’s complaint against him. Allegedly, Mr. Gonzalez borrowed money from a student and promised to repay the student more money than he borrowed on his (Mr. Gonzalez’s) payday, but failed to do so. The student told his mother, and the student’s mother reported the incident to the principal. The investigation began in February 2009. During the investigation of the parent’s complaint, Mr. Gonzalez became the subject of a separate investigation by the School Police due to a background check of Mr. Gonzalez by the investigator, using the PAWN system of the Palm Beach County Sheriff’s Office (Sheriff’s Office). The PAWN system is used by the Sheriff’s Office to track pawn transactions in local pawn shops. The background check showed Mr. Gonzalez’s name appearing 63 times in the PAWN system from June 2006 through March 2009. As to the separate investigation, the PAWN system revealed that a computer on the list of items pawned by Mr. Gonzalez matched the missing computer from S.D. Spady. The manufacturer of the pawned computer confirmed that the service code number on the pawned computer indicated that the pawned computer was purchased by the School Board from the manufacturer. The pawn ticket for the pawned computer, maintained by the pawn shop, contained Mr. Gonzalez’s identifying information, including his name, address, driver’s license number, signature, and fingerprint, all of which were required by the pawn shop. The School Police arrested Mr. Gonzalez and charged him with grand theft, dealing in stolen property, and false verification of ownership of property. He was transferred to the Sheriff’s Office. Mr. Gonzalez’s fingerprints were taken when he was arrested. The fingerprint on the pawn ticket, maintained by the pawn shop, was confirmed by a latent print specialist at the Sheriff’s Office as matching Mr. Gonzalez’s fingerprint taken at the time of his arrest. The School Board’s Superintendent decided to recommend suspension without pay and termination of Mr. Gonzalez to the School Board. The Superintendent notified Mr. Gonzalez of his (the Superintendent’s) recommendation. Mr. Gonzalez notified the School Board of his challenge to the recommendation and requested a hearing. On November 16, 2009, Mr. Gonzalez pled guilty to one count of dealing in stolen property (stemming from the School Police’s case), a second degree felony, in State of Florida v. Jorge E. Gonzalez, Case No.2009CF005648AXX, Criminal Division, Circuit Court, Fifteenth Judicial Circuit, Palm Beach County, Florida. Among other things, the court withheld adjudication, placed him on probation, and ordered restitution to the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order suspending Jorge Gonzalez for 15 days without pay and terminating his employment. DONE AND ENTERED this 17th day of June, 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2010.
The Issue The first issue in this case is whether, as the district school board alleges, a teacher called her students "tonto" or stupid, threw books to the ground and forced students to pick them up, and put her feet and shoes in students' faces; if these allegations are proved to be true, than it will be necessary to decide whether the school board has just cause to suspend the teacher for 10 workdays, without pay.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Walkyria Dolz ("Dolz") had been a teacher for more than 40 years. Having begun her career in Cuba, Dolz emigrated in 1974 from her native country to the United States, where she continued to teach in New York City and Miami. An employee of the Miami-Dade County Public School System for the preceding 15 years, Dolz worked as a music teacher at Riverside Elementary School during the 2008- 09 school year, which is the period relevant to this case. Dolz did not have a classroom of her own at Riverside. Rather, she traveled from room to room, using a cart to transport books and musical instruments. Dolz visited each class to which she was assigned once per week for one hour. In this way, in a given year, she taught hundreds of Riverside students in grades one through five. In her long career, Dolz had never been the subject of a disciplinary proceeding until this matter began. Indeed, she had been (and as of the hearing continued to be) a respected member of Riverside's teaching staff. Much evidence supports this finding, but the following statement, which was written on May 21, 2009, by Riverside's principal, Sharon López, is instructive: Ms. Dolz has been under my supervision as school principal since December 12, 2002. She has always exhibited professional behavior as a classroom teacher and properly represented Riverside Elementary in all school functions off-campus. Ms. Dolz has met standards for classroom observations since her employment as a music teacher at Riverside Elementary in 1998. The allegations [at issue here] are out of character for Ms. Walkyria Dolz. The alleged misconduct primarily giving rise to this case allegedly occurred in November 2008, in a fifth-grade classroom. Based on the stories of several students, the School Board avers that Dolz: (a) attempted to kick a student in the face; (b) waived a sandal in (or at) another student's face; (c) dropped a book to quiet the students; and (d) called the students "tonto," a Spanish word the School Board contends means "stupid." Dolz consistently has denied having done any of these things and testified to that effect at hearing. The young children who testified against Dolz did not impress the undersigned as being accurate and reliable witnesses. The account of R. S.——who claimed that Dolz silently had approached his desk, removed her sandal (while balancing on one foot), and swung the footwear at his face as he sat there in fear, all without saying a single word during the entire event, which lasted at least three minutes (according to R. S.)——was incredible on its face. While it is not inconceivable that Dolz (or any teacher) could snap in the face of some provocation or incitement, the undersigned can neither believe nor find (on this evidence at any rate) that a veteran teacher with a clean disciplinary record suddenly became a bizarre, zombie-like creature for several minutes out of an otherwise ordinary workday and wordlessly set upon a well-behaved student for no reason. Similarly implausible was A. L.'s testimony about the foregoing alleged incident and another where Dolz supposedly nearly kicked a student named L. J. in the face with her foot, while standing on one leg, because L. J. was not playing his instrument properly. A. L.'s testimony in this regard is rejected not only because Dolz, 67, appeared to be physically incapable of kickboxing a child, but also because the undersigned is skeptical that a teacher who has taught for decades without incident——and who has always behaved professionally except, allegedly, in this one instance——would lose control of herself to such a degree merely because of a student's poor musical performance.1 A third student, A. W., testified that Dolz hit R. S. and L. J. on their arms. The School Board itself did not accept this testimony as credible, and neither does the undersigned. A. W.'s lack of credibility on this significant matter undermined his credibility in general. On balance, Dolz was a more credible witness than R. S., A. L., or A. W. The undersigned accepts her denial of wrongdoing as truthful and finds that, more likely than not, Dolz did not attempt to kick or strike any student. The remaining charges are much less serious. Several children testified that, when the students were talkative or inattentive, Dolz threw a textbook on the floor or a table to make a loud noise, which would get the class's attention. Dolz denies ever having done this. The undersigned finds that the evidence is insufficient to prove that Dolz used a textbook to threaten, embarrass, or humiliate a student, or otherwise in a manner that was objectively unseemly, untoward, or unreasonable under the circumstances. Some children testified that Dolz referred to her students as "tonto," an allegation which she denies. There is conflicting evidence concerning the meaning of the word "tonto" in Spanish. While the word can mean "stupid," as the School Board maintains, it also means "silly," as Dolz points out, and, depending on the context, can be used to suggest that someone is acting like a clown or fooling around. Based solely on the evidence presented, the undersigned cannot find that the Spanish term "tonto" is insulting per se, and the absence of any proof regarding the context in which Dolz allegedly uttered the word precludes a finding that she used it in a hurtful manner, if she used it at all. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Dolz is guilty of the offense of misconduct in office as defined in Florida Administrative Code Rule 6B-4.009(3).2 The greater weight of the evidence fails to establish that Dolz is guilty of the offense of unseemly conduct, which is prohibited under School Board Rule 6Gx13-4A-1.21.3 The greater weight of the evidence fails to establish that Dolz is guilty of violating the School Board's Code of Ethics, which is set forth in School Board Rule 6Gx13-4A-1.213.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Dolz of all charges brought against her in this proceeding and awarding her the back pay, plus benefits if any, which accrued while she served the previously imposed suspension of 10 workdays. DONE AND ENTERED this 8th day of January, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 8th day of January, 2010.
The Issue This is a case in which the Petitioner seeks to terminate the employment of the Respondent, who is a continuing contract teacher, on several grounds alleged in a three-count Notice of Specific Charges. The Respondent is charged in Count I with incompetency; in Count II with gross insubordination and willful neglect of duty; and in Count III with misconduct in office.
Findings Of Fact At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times material hereto, Respondent was employed by Petitioner as a teacher-on-special-assignment and a Language Arts (English) teacher within the school district of Miami-Dade County, Florida, assigned to Miami Beach Senior High School, Lake Stevens Middle School, and other work sites within the school district of Miami-Dade County, Florida. Respondent was employed by Petitioner pursuant to a continuing contract of employment and subject to the rules and regulations of the School Board. During the 1992/93 school year Respondent exhibited erratic behavior, mood changes, engaged in altercations with staff, was excessively absent, and chronically arrived late to the Chapter I Office, her assigned work site at that time. On November 6, 1992, a meeting was held with Respondent to notify Respondent that, due to her excessive absenteeism, repeated tardiness, mood swings, and altercations with other staff members, Respondent was being referred to the School Board's Employee Assistance Program (hereinafter "EAP"). At the November 6, 1992 meeting, Respondent became verbally aggressive and combative in her demeanor and stated that, since there was nothing wrong with her, she did not need to go to the EAP. On November 10, 1992, Respondent's then immediate supervisor requested a medical fitness evaluation due to, among other things, Respondent's excessive absenteeism, inability to accept directives, confrontations with staff members, lack of respect for authority, and because of Respondent's refusal to comply with the supervisory referral to EAP. On November 17, 1992, Respondent was directed to report for a Conference-for-the-Record (hereinafter "CFR") at Petitioner's Office of Professional Standards (hereinafter "OPS"). On December 14, 1992, a CFR was held with Respondent to address Respondent's medical fitness to perform assigned duties, as well as her excessive tardiness, excessive absenteeism, and non-compliance with administrative directives. At the December 14, 1992, CFR, it was decided that, because Respondent's duties at the Chapter I office were unclear, Respondent would be given a chance to return to her duties as a teacher-on-special-assignment at the Chapter I Office. At the conclusion of the December 14, 1992, CFR, Respondent agreed to strive to maintain a professional work environment. On January 19, 1993, Respondent's EAP case was closed after Respondent failed to appear at the scheduled EAP conference and after Respondent refused to participate in the program. During the 1993/94 school year, Respondent was assigned to teach an English for Speakers of Other Languages ("ESOL") class at Miami Beach Senior High School. During the first week of school in August of 1993, Respondent became involved in a verbal altercation in front of students after she was told that her classroom had been changed. During the altercation described in paragraph 14 above, Respondent, in front of the students in the classroom, became so upset over being notified of the room change that she screamed and yelled at her Department chairperson and pushed 15 to 20 books off a table. On September 1, 1994, several students in Respondent's ESOL class accused Respondent of directing disparaging statements to them, belittling them, and threatening to have her nephews harm them, if they reported her actions to the school principal. On September 2, 1994, as a result of Respondent's persistent erratic behavior and inappropriate conduct, including, but not limited to, calling students "bastards," and demeaning, accosting, and harassing other teachers in the hallways, the principal at Miami Beach Senior High School requested that Respondent undergo a medical fitness evaluation. On September 14, 1994, Respondent was involved in a verbal confrontation with another teacher at her school in the presence of students. Because of Respondent's agitated and irrational behavior, the other teacher was afraid that Respondent might hit her. Due to Respondent's expressed desire to transfer to a middle school, and because of her continuing behavioral problems, Respondent was transferred to Lake Stevens Middle School with the assistance of the principal at Miami Beach Senior High. Prior to Respondent's transfer to Lake Stevens Middle School, the principal at Lake Stevens Middle school was not informed of Respondent's history of behavioral problems until Respondent was involved in several incidents with other staff members at her new school. On December 4, 1995, a conference was held with Respondent and the school clerk at Lake Stevens Middle School in an attempt to resolve a dispute between the two employees. The conference was held after Respondent had been involved in an altercation with the school clerk. At the December 4, 1995, conference, Respondent was directed to avoid contact or communications with the school clerk unless initiated through a school administrator. On May 4, 1995, during a parent-teacher conference, the conference had to be terminated after Respondent became enraged and started yelling and screaming at the parent, the student, and an assistant principal. Respondent continued screaming even after the parent and student had left and persisted in shouting and yelling at the assistant principal while Respondent followed her around the main office. On February 8, 1996, another conference was held with the Respondent at Lake Stevens Middle School by the assistant principal to address a complaint filed by Respondent against a school secretary. As the conference was about to be concluded, Respondent started shouting and making disparaging remarks against the school secretary, and was generally "out-of-control." On May 2, 1996, Respondent was cited with insubordination after she entered the main office area and started yelling at the assistant principal and refused to cease her tirade after twice being directed by the assistant principal to stop shouting and explain her problem. On May 15, 1996, a formal observation of the Respondent's classroom performance was not conducted because Respondent was unable to provide her lesson plans and grade book to the administrator who was to observe her. Rather than place Respondent on prescription, the principal decided to give Respondent another opportunity to get her documentation in order for another observation. Prior to the May 15, 1996 voided observation, the assistant principal at Lake Stevens Middle School had noted that Respondent did not have her roll book, lesson plans, or student folders during the first thirty days after she had been transferred to Lake Stevens Middle School. During the beginning of the summer school session, on July 8, 1996, Respondent again became involved in a verbal altercation with the school clerk at Lake Stevens Middle School. This second altercation with the school clerk commenced when the school clerk, who was now the principal's secretary, told the Respondent that the Respondent could not walk into the principal's office without first contacting the principal's secretary. When an assistant principal intervened to resolve this altercation, Respondent became irate and refused to leave the assistant principal's office and instead told him to "push" her out. At the end of the school day on July 8, 1996, Respondent again became involved in an altercation with the principal's secretary after the Respondent purposefully pushed the secretary with her briefcase in the main office and thus provoked a verbal altercation, which required the intervention of school administrators. After the school buses had left, on July 8, 1996, the interim principal at Lake Stevens Middle School met with the Respondent to discuss the physical confrontation that had occurred earlier that day and verbally reprimanded the Respondent, advising her that the school administration would not tolerate another incident of this nature. As a result of the July 8, 1996, incident, a personnel investigation was conducted by the Division of School Police, which determined that the charge that Respondent had committed a battery was substantiated. On August 28, 1996, a temporary restraining order was issued against Respondent after Respondent allegedly threatened to kill her former boyfriend, who is also employed on an hourly basis by Petitioner. On October 7, 1996, a CFR was held with Respondent to address numerous incidents involving inappropriate and unprofessional conduct, the personnel investigation on the charge that Respondent had committed a battery, and Respondent's classroom performance and attendance. At that CFR, Respondent was directed to avoid any further altercations (verbal or physical) with other staff members. Respondent was also advised that her failure to comply with previous directives regarding altercations with staff members was considered insubordination and was in violation of School Board rules on employee conduct and violence in the workplace. Respondent was also advised that any further incidents would be considered gross insubordination. At the CFR held on October 7, 1996, Respondent was assigned to her home as an alternate assignment due to her repeated involvement in altercations at the school sites and her unprofessional conduct. Due to Respondent's continued involvement in altercations with other employees--even after being repeatedly directed to avoid same--and because of Respondent's history of erratic behavior at her work site, Respondent was further required to undergo a medical fitness evaluation. On October 8 through 11, 1996, a psychological evaluation was conducted by Dr. Michael Hendrickson, Ph.D., a licensed psychologist. Dr. Hendrickson recommended that Respondent become involved in psychotherapy through the EAP, and that Respondent be required to undergo a neurological evaluation to rule out a neurological basis for Respondent's reported behavioral problems. He also recommended that Respondent be required to undergo psychotherapy once a week for a full year. On October 15, 1996, Respondent was allowed to return to Lake Stevens Middle School. On October 22, 1996, Respondent was formally observed in the classroom and was found to be unacceptable in the categories of preparation and planning, and in assessment techniques in accordance with the Teacher Assessment and Development System. Respondent was prescribed activities to assist her in overcoming her deficiencies. On the day of the formal observation described immediately above, the administrator who conducted the classroom observation noted, among other things, that Respondent's lesson plans were incomplete; that Respondent's grade book did not contain grades for at least two of her classes; that there was no evidence of tests or quizzes given to the students; that students' work was piled on the teacher's desk, table, and cabinets; and that students' folders were incomplete. By November 5, 1996, Respondent had yet to complete the prescriptive activities that had been assigned to her as a result of the formal classroom observation conducted on October 22, 1996. At the and of the school day on December 12, 1996, Respondent approached the school principal, in the presence of students who were just getting into their school busses, and accused the principal of taking part in a plot to fire her and stated that she wanted to be assigned to the region office rather than work at Lake Stevens Middle School. The principal advised Respondent that this was not the appropriate place to hold such a discussion and that she should meet with him later in his office. On December 12, 1996, upon entering the principal's office, Respondent began to cry, used profanity, started shouting and screaming at the school principal, refused to leave the office, and, ultimately, had to be escorted out of principal's office into the main office, where Respondent continued to scream and shout in the presence of parents, students, and staff. While in the main office area on December 12, 1996, Respondent had to be restrained by other staff members after she started directing her verbal attack--in a threatening manner--at a school counselor. Respondent was finally escorted out of the school. On December 17, 1996, a follow-up CFR was held with Respondent to review the results of the psychological evaluation of Respondent and her continued inappropriate and unprofessional conduct as evidenced by her involvement in the December 12, 1996, incident in the main office of Lake Stevens Middle School, and her continuing acts of insubordination. At the December 17, 1996, follow-up CFR, Respondent was directed to attend psychotherapy once a week, for one (1) year, to undergo a neurological evaluation, and to immediately report to the EAP. Because of the school district's concern that Respondent had a propensity for violence, as evidenced by her numerous altercations with other employees, Respondent was also directed to remain on alternate assignment at her home. On January 31, 1997, Respondent was notified that her failure to comply with the administrative directives issued at the follow-up CFR held on December 17, 1996, constituted gross insubordination. Respondent was again directed to comply with the directives listed immediately above, within five (5) work days or face further disciplinary action. On March 6, 1997, Respondent underwent a follow-up consultation with Dr. Hendrickson, the psychologist that had conducted the initial psychological evaluation. The follow-up consultation with Dr. Hendrickson was necessitated by Respondent's continued involvement in altercations with other employees at her work site after she had completed her psychological evaluation on October 11, 1996. After the follow- up consultation, Dr. Hendrickson recommended that Respondent be required to undergo a psychiatric evaluation to assess the cause of her various conflicts and aggressive outbursts. On March 27, 1997, a CFR was held with Respondent to address Respondent's follow-up consultation with Dr. Hendrickson. At this CFR, Respondent was directed to undergo a psychiatric evaluation as a condition of Respondent's continued employment with Petitioner and to report the results of that evaluation within five (5) work days. On or about April 29, 1997, Respondent was directed to report on May 1, 1997, to OPS for a CFR, to discuss, among other things, Respondent's failure to comply with administrative directives regarding her medical fitness to perform assigned duties, specifically Respondent's failure to undergo a psychiatric evaluation, and Respondent's failure to adhere to previously issued administrative directives relative to her unprofessional conduct, and her unacceptable and disruptive behavior. On or about May 1, 1997, Respondent failed to attend the CFR scheduled for that day. The May 1, 1997, CFR was rescheduled to May 2, 1997, after Respondent indicated that she would not attend unless escorted by a police officer because she feared for her personal safety. On May 2, 1997, Respondent was notified that her failure to attend the CFR scheduled for that day would constitute gross insubordination. Due to Respondent's failure to attend the May 2, 1997, CFR, on May 9, 1997, Respondent was directed to attend a CFR scheduled for May 13, 1997, at OPS. Respondent was also advised that her failure to attend the May 13, 1997, CFR would be considered gross insubordination and that Respondent would be subject to dismissal from further employment with Petitioner. Respondent failed to attend the CFR scheduled for May 13, 1997. At its regularly scheduled meeting of May 21, 1997, the School Board of Dade County, Florida, took action to suspend and initiate dismissal proceedings against Respondent on the grounds of incompetency, misconduct in office, gross insubordination or willful neglect of duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board of Miami-Dade County, Florida ordering that: Respondent be found to be guilty of incompetency, gross insubordination or willful neglect of duty, and misconduct in office, as charged in the Notice of Specific Charges; Respondent's suspension without pay from employment on May 21, 1997, be sustained and that she receive no back pay for the period of her suspension; and that Respondent be dismissed from all employment with the School Board of Miami-Dade County, Florida. DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998.
The Issue Whether Respondent may be terminated for just cause, in accordance with Article VI, Section 1.A. of the contract between the School Board and the American Federation of State, County and Municipal Employees, Council 79, Local 850 (AFSCME).
Findings Of Fact Respondent has a twelfth grade education and is a licensed cosmetologist. She has been employed by Volusia County for over 20 years and for about eight years by Petitioner Volusia County School Board. During her years with the School Board, she has worked at Silver Sands Middle School and at Campbell Middle School. At the time the charges herein arose, Respondent was serving as a Campus Advisor at Campbell Middle School and was subject to, and protected by, the contract between the School Board and her union, AFSCME. Article VI of the AFSCME contract (Exhibit P-9) provides as follows: Section 1 – Disciplinary Action An employee may be disciplined only for just cause. . . . An employee who elects to proceed under Chapter [sic Section] 120.57, Florida Statutes, may further elect to proceed before a hearing officer [sic. Administrative Law Judge] whose decision will be regulated under Chapter 120.68, Florida Statutes. . . . Under normal circumstances the Board will follow the tenets of progressive discipline in the administration of its disciplinary standards. Discipline shall be defined as (1) the suspension of an employee; (2) the termination of an employee during the term of his or her annual contract, after he or she has completed the initial probationary period; or (3) the non-reappointment of an employee who has successfully completed three consecutive years of employment with the District, and been reappointed for a fourth year. * * * As a Campus Advisor, Respondent was responsible for aiding in maintaining a safe school environment for students. Her duties included monitoring security issues and assisting the school administrative staff with control of students. She monitored the cafeteria, helped to conduct traffic flow, and assisted students and administrators with whatever task was necessary. In her capacity as Campus Advisor, Respondent directly interacted with students on a daily basis. In August 2003, while she was employed at Silver Sands Middle School, Respondent had been referred for a fitness-for- duty evaluation because she was exhibiting irrational and disturbed behavior at school. This referral was in the nature of an intervention to protect the children in her care, to enable Respondent to get the mental health help she needed, and to permit her to continue her employment. Dr. Timothy Shaw, a psychologist, diagnosed Respondent as suffering from “Delusional Disorder, Persecutory Type,” and School Board officials asked Respondent to sign a contract agreeing to successfully maintain a prescribed program of care for her diagnosed mental condition. On January 14, 2004,3/ Respondent entered into an employment agreement (written contract) with the School Board by which she agreed to, among other things, “. . . participate in whatever treatment is prescribed if it is deemed necessary by the aforementioned professional” and to “successfully complete and maintain the prescribed program of care . . . “ Respondent acknowledged at hearing that part of the prescribed program of care at that time was for her to daily take Clonazepam (possibly Klonopin), a psychiatric medication, prescribed by a psychiatrist, Dr. Wylie. Respondent was compliant with her counseling, medication, and employment agreement for a long period of time. As of May 3, 2004, she had been recognized as “Staff Person of the Month” at Campbell Middle School. As of May 13, 2005, she had received a Service Pin as the School Board's recognition of her excellent job performance. Also, all of her attendance records were exemplary and her evaluations highly rated during this period of time. She also was active in her church and in her community during this period. At some point, Respondent felt unwell and left work with the permission of the Campbell Middle School principal. She consulted a private neurologist, who prescribed 25 milligrams of the psychiatric medication Seroquel. However, Respondent did not take this medication, because she had read or heard that it had unpleasant or dangerous side effects. Moreover, she began to take the Clonazepam, required under her contract with the School District, only when she, in her unilateral opinion, believed she needed it. On October 11, 2005, Vicky Presley, Campbell Middle School Principal, reported to Petitioner’s Office of Professional Standards that Respondent was again exhibiting irrational behavior on the job. In response to Ms. Presley's report, Professional Standards Investigator Thomas N. Harrison spoke to Respondent on October 12, 2005. At that time, Respondent told Harrison that she believed that surveillance cameras were in her home, and that she knew a red dot followed her around her house. Based on these comments and Ms. Presley's report, Mr. Harrison scheduled a meeting with Respondent to discuss a new fitness for duty evaluation. On October 14, 2005, Mr. Harrison met with Respondent to initiate the new fitness for duty evaluation. During the course of their meeting, Respondent admitted to Mr. Harrison that she had stopped taking her psychiatric medication. She went on to say that she would not take the medication required by her January 14, 2004, contract any longer, because it made her mouth dry and she did not like the way it made her feel. She also affirmatively disclosed to him that she was carrying an unloaded handgun in her purse. Mr. Harrison perceived her comments and behavior as sufficiently irrational, worrisome, or problematic for him to be concerned for her safety and that of her husband. He called in the Daytona Beach Police and Respondent’s husband. The Daytona Beach police officers who responded to Mr. Harrison’s call questioned Respondent but released her to her husband and declined to “Baker Act” her. Mr. Harrison informed Respondent that she was being referred to the Employees Assistance Program (EAP). Initially, Respondent indicated that she would not comply with the referral to EAP. However, she ultimately accepted the referral to The Allen Group, which oversees Petitioner’s EAP services. On October 28, 2005, Respondent signed another employment agreement (contract), in which she again agreed to successfully maintain a prescribed program of care for her mental illness. Pursuant to paragraphs eight and nine of that October 28, 2005, contract, Respondent acknowledged that she understood that the document constituted additional terms for her continued employment, as follows: By signing this agreement The EMPLOYEE is acknowledging that any manifestation of the condition named by the aforementioned professional does not give rise to an obligation of the EMPLOYER to accept such behavior by the EMPLOYEE. By signing this agreement the EMPLOYEE is acknowledging his/her understanding that any violation of Federal Law or Regulation of the State of Florida, the Rules and Regulations of the State Board of Education, or the policies of the EMPLOYER will subject the EMPLOYEE to a recommendation by the superintendent to the school board for the EMPLOYEE’S termination from employment by the EMPLOYER. Further, the EMPLOYEE understands that this agreement does not constitute a guarantee of employment but merely constitutes additional terms for the period of employment. (Emphasis supplied.) Based on the delusional behavior and paranoia Respondent exhibited during her EAP assessment, The Allen Group referred her for a psychiatric evaluation. That psychiatric evaluation was conducted by James T. Moore, M.D., a Florida- licensed psychiatrist, on or about November 3, 2005. Dr. Moore considered Respondent to be clearly psychotic on that occasion. She continued to talk about being under surveillance from the red dot in her home and stated that she was subjected to untrue rumors that she inappropriately watched school children and that she had stolen food. This was the same situation that she had complained-of at Silver Sands Middle School. Dr. Moore diagnosed her condition as “presumably delusional disorder, persecutory type,” and provided her with samples of 100 milligram tablets of Seroquel. His deposition and report in evidence do not reflect that he ever wrote a prescription for Seroquel for Respondent. In fact, his testimony was that he felt Respondent needed more than 100 milligram tablets of Seroquel daily but that he believed he should not provide/prescribe more than 100 milligrams unless he were treating Respondent as his patient in an on-going fashion. Respondent’s testimony acknowledged that with or without a prescription for Seroquel, she would not take that drug, because she had heard of its side-effects and that a “lawyer” was going to remove it from the market. She did, however, continue her psychological therapy with The Allen Group. On November 30, 2005, James Hollins, Director of the Office Of Professional Standards, was informed by Kevin Percy, M.Ed., CEAP, LMHC, and a member of The Allen Group who had met with Respondent on several occasions, that Respondent had been assessed and a treatment plan had been developed for her. However, Mr. Percy, who is a Florida-licensed mental health counselor, went on to report to Mr. Hollins that Respondent's illness was "uncontrolled and she refuses to follow medical orders." Additionally, he reported that Respondent was not pursuing any acceptable alternative course of treatment. In summation, he opined that Respondent was "non-compliant" with the prescribed treatment plan, because she would not take her medicine. No evidence was presented that any medical or psychological professional had ever considered offering, or had offered, Respondent a substitute for Seroquel. On December 2, 2002, Dr. Moore reported to Mr. Hollins that Respondent's condition was an impediment to the fulfillment of her duties as Campus Advisor. Dr. Moore recommended, after consultation with Mr. Percy and others in The Allen Group, that Respondent not be returned to work, because he felt she should not be around children in her condition. By this time, Respondent had told Messrs. Harrison, Percy, and Moore that she would not take Seroquel. Based on Respondent's failure to adhere to the terms of the two contracts, each entitled “Employment Agreement,” and due to the report by properly licensed and qualified medical and psychological personnel that Respondent was not mentally fit to successfully carry out her duties as a Campus Advisor for the School Board, Mr. Hollins recommended to the Superintendent of Schools, Dr. Margaret Smith, that Dr. Smith request that the School Board terminate Respondent's employment. Mr. Hollins’ recommendation and Ms. Smith's decision to follow that recommendation were reached after they had determined that the School Board had no position available for which Respondent was qualified and which did not require her to be around children. On April 11, 2006, Dr. Smith informed Respondent, by letter, of her intent to recommend to the School Board that Respondent be dismissed from employment at the April 25, 2006, School Board meeting, explaining that the reason for her recommendation was that: The Respondent has breached an agreement dated January 14, 2005, [sic] in which she had agreed to successfully maintain a prescribed program of care for a mental illness which had been previously diagnosed as a result of the Respondent having been referred for a fitness for duty examination. Properly licensed and qualified medical and psychological personnel have determined that the Respondent is no longer following the prescribed program of care, and the Respondent has admitted such to investigators employed by the School Board in its Professional Standards Department. The Respondent is unable to perform out [sic] the essential duties and functions of campus advisor for the School Board, as determined by properly licensed and qualified medical and psychological personnel. Based on the foregoing, the School Board voted to terminate Respondent's employment on April 25, 2006. Respondent was informed of her right to “appeal” that decision, and this case followed. At hearing, Respondent testified that her reasons for not taking her prescribed psychiatric medication were that she "didn't feel [it] was needed at the time it was prescribed." She admitted that no licensed medical professional had instructed her to stop taking her medication. Her decision to stop the medication was her own unilateral decision, and as of the hearing date, September 22, 2006, she had taken no psychiatric medications (neither Clonazepam nor Seroquel) for over a year. She refused to take the drug Seroquel under any conditions. Respondent’s testimony is not entirely clear, but either she believes that the medicine she was taking or her problems with the School Board in 2005 added to the stress in her marriage and thus led to a subsequent divorce, or the stress in the marriage caused her problems with the medication and School Board. Petitioner still believes that adults encouraged school children to pose suggestively for her and that a white dot she calls her "little furry dot" follows her around her house, but the dot no longer bothers her. She is currently attending a community college in a degree program and doing very well. She intends to "not be negative."
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Volusia County enter a final order ratifying its previous termination of Respondent. DONE AND ENTERED this 18th day of December, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 December, 2006.
The Issue Whether Respondent engaged in the conduct alleged in the Administrative Complaint. If so, whether such conduct provides the School District of Palm Beach County with "just cause" to take disciplinary action against Respondent pursuant to Section 231.36, Florida Statutes. If so, what specific disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida. Respondent's Teacher Certification Respondent is a teacher by profession. She holds a certificate (Certificate Number 618674) issued by the Florida Department of Education certifying that she is eligible to teach in the State of Florida in the areas of early childhood education, elementary education, ESOL, and exceptional education (specific learning disabilities, emotionally handicapped, and mentally handicapped). The certificate's "validity period" is July 1, 1993, through June 30, 1998. Respondent's Employment History Respondent has been employed by the School District since August of 1987. She holds a professional services contract. She is currently under suspension (without pay) pending the outcome of this disciplinary proceeding. For the duration of her employment with the School District, Respondent has held an instructional position at Forest Hill Elementary School (Forest Hill), the principal of which, since the 1988-89 school year, has been Linda Hardy. During her early years at Forest Hill, Respondent taught emotionally handicapped students. Having to deal with these special-need students, however, became too stressful for her. She therefore was moved to the regular education program at the school and served as a regular fifth grade classroom teacher until her removal from the classroom in November of 1996 when the school administration learned of the criminal conduct in which she had engaged the month before (that is described in the Administrative Complaint). Respondent's Classroom Performance Respondent's classroom performance at Forest Hill was erratic. Principal Hardy had various informal conferences with Respondent during which she identified for Respondent those areas of Respondent's performance in which improvement was needed. Respondent's performance in these areas would improve and reach a satisfactory level following each conference, but only for a limited period of time, after which it would decline again, thereby necessitating the convening of another conference. As Principal Hardy stated in her testimony at the final hearing, Respondent's performance was "like a roller coaster." Respondent nonetheless received an overall satisfactory rating on every annual written evaluation she was given while at Forest Hill. There were, however, on each of these evaluations, "areas of concern" noted.1 These "areas of concern" primarily involved Respondent's interaction with students, parents and colleagues. Respondent's Prior Disciplinary Record Prior to her removal from the classroom in November 1996, the only discipline she had received was a written reprimand for failing to timely submit lesson plans and other paperwork. Respondent's Rejection of the Suggestion to Participate in the Employee Assistance Program Particularly during the latter part of the period that she served as a regular classroom teacher, Respondent had difficulty coping with the stress she was experiencing in both her professional and personal lives. Principal Hardy, in whom Respondent had confided about these problems, suggested on more than one occasion that Respondent utilize the services of the School District's Employee Assistance Program. Respondent declined to follow Principal Hardy's suggestions. She advised Principal Hardy that it was unnecessary for her to seek assistance from the Employee Assistance Program since she was "seeing her own doctor" to help her with these problems. The Granting of Respondent's Request for Extended Leave By letter dated November 8, 1995, which read, in pertinent part, as follows, Respondent requested an extended leave of absence from her position with the School District: Effective 11-8-95, I am requesting a temporary leave of absence from my fifth grade teaching position at Forest Hill Elementary School (0621). At the present time it would be in the best interest of my students if I take a temporary leave of absence. During this temporary leave of absence I will be under the care of Doctors Jeanne Yetz [and] Mark Ellinger . . . . Respondent was granted a leave of absence from November 8, 1995, until January of 1996. Respondent's Mental Health Dr. Mark Ellinger is a clinical psychologist who has been treating Respondent (using psychotherapy) since August of 1994, for problems relating to mood, interpersonal relations, and substance abuse and dependence. Dr. Ellinger's treatment has been supplemented by medication (to reduce anxiety and for depression) prescribed by a psychiatrist, Dr. Jeanne Yetz. Over the period of time that she has been treated by Drs. Ellinger and Yetz, Respondent's condition has worsened. Dr. Ellinger's original diagnosis, at the time treatment began, was depressive disorder NOS (Not Otherwise Specified), a very mild disturbance. His secondary diagnosis was post-traumatic stress disorder. (Respondent related to Dr. Ellinger that, during her childhood, she had been sexually molested and verbally and physically abused.) More recently, in October of 1997, Dr. Ellinger determined that Respondent was suffering from major depression recurrent, borderline personality disorder, and cannabis dependence (in partial remission). Major depression recurrent is the most severe form of depression. Borderline personality disorder is also a very serious mental illness. It can extend over a lifetime and is difficult to treat effectively. Persons with borderline personality disorder struggle to control their anger and rage and to act appropriately, particularly in their dealings with others. As a result, they have difficulty maintaining stable interpersonal relationships. Cannabis dependence is a maladaptive pattern of marijuana use leading to clinically significant impairment or distress. It is more serious than cannabis abuse, which, unlike cannabis dependence, involves merely periodic, rather than ongoing, marijuana use. On November 5, 1997, Dr. Ellinger filled out a Functional Capacities Evaluation form (FCE Form) describing Respondent's abilities in the following areas: Ability to relate to other people; Restriction of daily activities, e.g. ability to attend meetings, socialize with others, attend to personal needs, etc.; Deterioration of personal habits; Constriction of interests; Understand, carry out, and remember instructions; Respond appropriately to supervision; Perform work requiring regular contact with others; Perform work where contact with others will be minimal; Perform tasks involving minimal intellectual effort; Perform intellectually complex tasks requiring higher levels of reasoning, math and language skills; Perform repetitive tasks; Perform varied tasks; Makes independent judgment; Supervise or manage others; Perform under stress when confronted with emergency, critical, unusual or dangerous situations; or situations in which working speed and sustained attention are make or break aspects of the job; and Ability to work relative to the attached job description. Dr. Ellinger indicated on the FCE Form that Respondent had a "mild" impairment ("[s]uspected impairment of slight importance which does not affect functionality ability") in areas 3, 11, and 12; a "moderate" impairment ("[i]mpairment affects but does not preclude ability to function") in areas 4, 5, 8, 9, and 10; and a "moderately severe" impairment ("[i]mpairment significantly affects ability to function") in areas 1, 2, 6, 7, 13, 15, and 16.2 Dr. Ellinger sent the completed FCE Form to the "claims advisory agent" representing the insurance company with whom Respondent had filed, in May of 1997, after the initiation of this disciplinary proceeding, a claim seeking disability insurance benefits. Dr. Ellinger also completed and sent to the "claims advisory agent" a Mental Status Supplemental Questionnaire (Questionnaire), in which he stated, among other things, the following: She [Respondent] continues to struggle with the above listed problems [problems relating to mood, substance abuse and interpersonal relations] and those have gone on for years. Mood is intermittently depressed, anxious and irritable. Thinking processes are intact with some moderate deficit due to mood disorder and stress of medical problems. Intelligence is normal. Perception shows some deficits and judgment has been poor in recent past evidenced by legal problems. Behavior has been impulsive and aggressive. He also indicated in the completed Questionnaire that one of Respondent's "treatment goals" was to "develop [a] new career due to [her] disability." It is important for Respondent to "develop [a] new career" inasmuch as her deep-rooted and severe mental health problems have significantly impaired her ability to function effectively as a classroom teacher.3 Respondent's Relationship with the Scrivos In 1996, Respondent moved into an apartment building on Seapine Way (Seapine Apartments) in Greenacres, Florida. Living in the apartment directly beneath Respondent's was the Scrivo family: Joseph, Sr. (Joe); his wife Dana; and their children, Joseph, Jr., and Gianna. Joseph, Jr., and Gianna are now three and eight years of age, respectively. Gianna is now, and has been at all times material to the instant case, a student at Forest Hill. After moving into the Seapine Apartments, Respondent began to socialize with the Scrivo family and became friends with Dana. Respondent, however, did not get along well with Joe. Joe said things to Respondent that Respondent considered to be insulting. She also suspected that Joe was the person who was leaving the pornographic material she started to find at her front door in the morning. (In fact, Joe was not the culprit.) The Scrivos' Separation In the summer of 1996, Joe and Dana had marital problems. As these problems escalated, Joe began to secretly tape record Dana's telephone conversations at home. With Respondent's assistance, Dana discovered that Joe was making these tape recordings. On August 7, 1996, Joe and Dana separated. Dana and the children remained in the Seapine Way apartment. Joe moved into a trailer located at 6074 South 16th Way in West Palm Beach. Dana obtained a restraining order against Joe. The restraining order prohibited Joe from having contact with Dana, except to the extent that such contact was necessary for Joe and Dana to discuss and to tend to the needs of their children. Dana made Respondent aware of the fact that she had obtained a restraining order against Joe. Joe's October 23, 1996, Visit to the Seapine Apartments Gianna had trouble dealing with her parents' separation. On the evening of October 23, 1996, Gianna was particularly upset. Dana telephoned Joe and told him that she wanted to speak to him in person about Gianna. Later that evening, Joe drove to the Seapine Apartments to meet with Dana. Respondent saw Joe in his van outside the apartment building. She telephoned the police and reported to them that Joe was on the grounds of the Seapine Apartments in violation of a restraining order that had been issued against him. When the police arrived on the scene, Joe and Dana were in Joe's van talking to one another. The police questioned Joe and then spoke to Dana. Dana told the police that she had requested the meeting with Joe to talk to him about the emotional problems their daughter was experiencing. She further informed the police that the restraining order did not bar Joe from meeting with her to discuss such a matter. The police left without taking any action. The Vandalizing of Respondent's Car The following afternoon, Thursday, October 24, 1996, Joe left town to visit his aunt in Key West, Florida. Sometime after Joe left town, during the evening of October 24, 1996, or the morning of October 25, 1996, before approximately 7:45 a.m., the front of the exterior of Respondent's automobile was damaged while the automobile was parked in the parking lot outside her apartment. It appeared to Respondent, who discovered the damage at approximately 7:45 a.m. on October 25, 1996, as she was about to get into her car and drive to work, that someone had thrown paint remover on the car. Respondent reported the damage to the police and then drove to work. After work she went to a body shop to obtain an assessment of the damage that had been done to her automobile. She then returned home. The "Trashing" of Joe's Trailer and the Theft and Use of Joe's Credit Cards From the time she returned home until the early morning hours of Sunday, October 27, 1996, Respondent remained awake and stewed about what had been done to her car. She felt as if she had been "violated." The more she thought about it, the more upset and angrier she became. Although she was experiencing these negative feelings, Respondent believed that there was no immediate need to seek the assistance of Dr. Ellinger, with whom she had an appointment scheduled for the following week. She thought that this situation "was something that [she] could actually work through" herself. As it turned out, she was wrong. Respondent erroneously believed that it was Joe who had damaged her automobile and she decided to get even with him by doing damage to his possessions. She knew that Joe was out of town, so, during the early morning hours of Sunday, October 27, 1996, she drove to Joe's trailer with the intention of vandalizing it and its contents. Upon arriving at her destination, she broke into the trailer and, in accordance with her plan, proceeded to willfully and maliciously do extensive damage to the interior of the structure and the possessions of Joe's that were in the structure. Among other things, she flooded the trailer by stopping up the sinks, turning on the faucets, and letting the water run; spread and smeared food items that were in the refrigerator on the floor, walls, ceiling, furniture, and photographs, including photographs of the Scrivo children; slashed Joe's clothes and his bed with a knife; and damaged electronic equipment. In addition, she stole from the trailer three of Joe's credit cards, which she subsequently used to purchase, by fraudulent means, in excess of $300.00 worth of merchandise. Respondent's "trashing" of Joe's trailer and her theft and fraudulent use of his credit cards was related to her mental illness, which made it difficult for her to control her emotions and to exercise restraint (although she knew what she was doing and that her actions were wrong). Respondent engaged in this conduct, notwithstanding that she was at the time, and had been for approximately the previous 26 months, under the care of, and receiving treatment from, Drs. Ellinger and Yetz. In fact, Dr. Ellinger had specifically counseled Respondent to make every effort to avoid being provoked by Joe. There is no guarantee that Respondent will not engage in similar inappropriate conduct in the future. Indeed, given the nature of her mental illness, it is more likely than not that she will. The Discovery of Respondent's Crimes Respondent also took from the trailer, when she left after her rampage, three or four audio cassette tapes that Joe had used to secretly tape record Dana's telephone conversations before their separation. Respondent left the tapes outside the front door of Dana's apartment along with a note which read as follows: These are the tapes that Joe used to record your phone conversations. From a friend. When Dana found the tapes and read the note she figured that someone had broken into Joe's trailer. She suspected Respondent as having been the culprit because, to Dana's knowledge, other than Joe and her herself, only Respondent and a friend of Dana's who lived in New Jersey knew of the existence of the tapes. Dana asked two of her downstairs neighbors who were friendly with Joe to go check on Joe's trailer. They agreed to do so. Some time later, one of them returned and informed Dana that Joe's trailer was flooded and that the police had been called to the scene. The other neighbor telephoned Joe, who was still in Key West, and told him about the damage to his trailer. Joe returned home immediately. Respondent's Post-Incident Conduct Respondent did not want anyone to know what she had done. She therefore initially told no one, not even Dr. Ellinger, about her "trashing" of Joe's trailer and her stealing and subsequently using his credit cards. While she remained quiet about her wrongdoing, she was not reluctant to complain to others about what she perceived to be Joe's harassment of her. On or about October 29, 1996, Respondent applied for and obtained in Palm Beach County Circuit Court an ex parte restraining order against Joe. The restraining order was later dismissed on November 12, 1996, after a hearing on the matter, in which both Joe and Respondent participated. On November 22, 1996, the police came to Forest Hill to speak with Respondent about the events of October 27, 1996. After being read her Miranda rights, Respondent agreed to give a statement to the police. At first, Respondent denied breaking into Joe's trailer. Not long thereafter, however, she retracted her denial and admitted to the police what she had done. Following the interview, the police advised Respondent that they would be seeking the issuance of a capias for her arrest. The police told Principal Hardy of their intention to effect Respondent's arrest. Principal Hardy thereupon directed Respondent not to return to the classroom and informed her that she was being reassigned (with pay) to her home until further notice. Later that day, Respondent saw Dr. Ellinger and for the first time told him about her destructive behavior at Joe's trailer during the early morning hours of October 27, 1996. (She subsequently, on December 16, 1996, told Dr. Ellinger about the credit cards she had stolen and then used.) The District Meeting and Meeting of the Professional Standards Committee Principal Hardy brought the matter of the police investigation of Respondent to the attention of the School District's Department of Employee Relations. The Department of Employee Relations determined that a pre-disciplinary meeting should be held with Respondent. Such a pre-disciplinary meeting was ultimately held on March 18, 1997. Present at the meeting were representatives of the School District, a representative of the Palm Beach County Teachers Association, Respondent and her attorney. At the meeting, Respondent admitted to breaking into Joe's trailer and "trashing" it and to stealing Joe's credit cards and using them to make purchases in excess of $300.00. In attempting to explain why she had engaged in such conduct, Respondent claimed that Joe had taunted, stalked and harassed her prior to the incident. In addition, she advised that she was under the care of a psychologist, Dr. Ellinger, whom, she stated, the School District could contact if it so desired. After hearing from Respondent, the School District representatives at the meeting determined that there was probable cause for the matter to be presented to the School District's Professional Standards Committee for its recommendation. After having considered the matter, the Professional Standards Committee recommended to the School District's Superintendent of Schools that action be initiated to terminate Respondent's employment with the School District. The Superintendent's Action On April 14, 1997, the Superintendent of Schools sent Respondent a Notice of Suspension and Recommendation for Dismissal from Employment, which read as follows: Based upon substantial information presented to me, I hereby inform you that I have found probable cause sufficient to warrant recommendation for your suspension without pay and dismissal from employment with the School District as an instructor. You are charged with committing misconduct sufficient to constitute just cause under the 1995-1997 collective bargaining agreement between the School District of Palm Beach County, and the Palm Beach County Classroom Teachers Association, based upon the following actions (criminal or otherwise): First, you admitted to breaking into a trailer and "trashing it." Second, you admitted to stealing a credit card and using it to make purchases in excess of $300.00. Such conduct constitutes a violation of Section 231.36(1)(a), Florida Statutes (1995), School Board Rules and Regulations, and the Code of Ethics for the Education Profession in Florida, Chapter 6B-1, Florida Administrative Code. Please be advised that I will recommend at the May 7, 1997, meeting of the School Board of Palm Beach County, Florida, that the School Board suspend you without pay effective May 8, 1997, and that the termination of employment will become effective upon the expiration of fifteen days thereafter. This action is taken in accordance with Sections 230.23 and 230.33, Florida Statutes. The May 7, 1997, School Board meeting will be held in the Board Room at 3300 Forest Hill Boulevard, West Palm Beach, Florida at 5:00 p.m. You or your representative have the right to attend this meeting and present an oral statement or documentation to show why you should not be suspended without pay and/or terminated. If you intend to speak before the School Board, please immediately notify Ms. Alicia Bell, Clerk, at (561) 434- 8139, of your intention to make a presentation at that meeting. Pursuant to School Board Policy 3.27, you have the right to request a formal hearing contesting the recommendation for your suspension without pay and dismissal. If you desire to request a formal hearing, you must put your request in writing and submit it within fifteen (15) days from receipt of this letter to Cynthia S. Prettyman, General Counsel, School District of Palm Beach County, 3318 Forest Hill Boulevard, C-302, West Palm Beach Florida 33406-5813. Failure on your part to timely request a hearing will be deemed a waiver of your right to a hearing on the matter, and all material allegations and charges made against you shall be deemed true by the School Board for purposes of entering a final order in this matter. On April 22, 1997, the Superintendent of Schools executed a Petition for Dismissal, which contained the following "administrative charges" and "demand for relief": ADMINISTRATIVE CHARGES Petitioner, Dr. P. Kowal, alleges as follows: Respondent, Debora Woessner, admits to breaking into a trailer and "trashing it." Respondent also admits to stealing a credit card and using it to make purchases in excess of $300.00. The above-described conduct violated Section 231.36(1)(a), Florida Statutes (1995), the Respondent's contract, the Palm Beach County School Board's Rules and Regulations, and the Code of Ethics of the Education Profession in Florida, Chapter 6B- 1, Florida Administrative Code. Just cause exists for the requested relief, pursuant to Section 231.36(1)(a), Florida Statutes; Article II, Section M, of the collective bargaining agreement between the School District and the Palm Beach County Classroom Teachers Association; the School Board's Rules and Regulations; and Rule 6B- 4.009, Florida Administrative Code, in that Respondent has engaged in misconduct, criminal and otherwise, which is inconsistent with the standards of public conscience and good morals, to wit: destruction of property, breaking and entering, and theft. DEMAND FOR RELIEF WHEREFORE, Petitioner, Dr. Joan P. Kowal, Superintendent of Schools, recommends that the School Board of Palm Beach County, Florida, immediately suspend Respondent, Debora Woessner, without further pay or benefits. The Petitioner recommends that the School Board, subsequent to providing the requisite notice, dismiss, the Respondent, Debora Woessner, from her employment as an instructor predicated upon the foregoing facts and legal authority. By letter dated April 28, 1997, which read as follows, Respondent, through her attorney, requested a hearing on the Superintendent of School's recommendation: Our office has been retained for the purpose of representing Ms. Debora Woessner before the School Board of Palm Beach County, Florida, with respect to the issues raised in the Superintendent's letter dated April 14, 1997, charging Ms. Woessner with misconduct. Ms. Woessner denies that there is any basis to support the Superintendent's recommendation for suspension without pay and contests the recommendation for her dismissal. Ms. Woessner requests that a hearing be conducted with respect to all issues raised by the charges described above and her defense to the charges, and requests such a hearing be conducted pursuant to the provisions of Section 120.57(1), Fla. Stat., before a hearing officer appointed by the Division of Administrative Hearings. I will speak on Ms. Woessner's behalf at the School Board meeting scheduled for May 7, 1997, when the Board will consider the propriety of the recommendation for suspension without pay and dismissal from employment. The Criminal Proceedings After the conclusion of the police investigation of the "trashing" of Joe's trailer and the theft and use of his credit cards, the matter was turned over to the State Attorney and Respondent was criminally charged (in Palm Beach County Circuit Court Case No. 96-13985CFA02) with one count of felony criminal mischief and one count of grand theft. Respondent entered a guilty/"best interest" plea to both counts. An Order Withholding Adjudication of Guilt and Placing Defendant on Probation was entered in Palm Beach County Circuit Court Case No. 96-13985CFA02 on April 23, 1997. The order placed Respondent on probation for a period of five years "concurrent with each count." Among the conditions of her probation were that she have "no contact" with Joe and that she pay Joe restitution in an amount to be determined following a hearing on the matter. Such a hearing was held on May 16, 1997, after which an order was entered which provided as follows: THIS CAUSE having come before the Court for a restitution hearing and this Court having [pr]esided at said hearing on May 16, 1997, it is hereby ORDERED AND ADJUDGED that Defendant, Debora Woessner, pay to the victim, Joseph Scrivo, restitution in the amount of $30,238.92. Restitution is to be a condition of the Defendant's probation sentence and shall be paid monthly in the minimum amount of $10 per month, commencing July 1, 1997 and continuing until paid in full. Publicity Respondent's criminal conduct was widely publicized in the community. It was reported in the newspaper and received television coverage. One particularly aggressive television news reporter attempted to interview Forest Hill students on school grounds to obtain their reaction to Respondent's wrongdoing. After the reporter was directed to leave, he stationed himself across the street from the school, where he interviewed students on their way home following the end of the school day. In addition, someone distributed in the neighborhood surrounding Forest Hill fliers which denounced Respondent as being unfit to teach as a result of her criminal conduct. Impaired Effectiveness Teachers serve as authority figures and role models for their students. Respondent's ability to effectively serve as a positive role model for her students has been seriously impaired by her widely publicized criminal conduct. The May 7, 1997, School Board Meeting The Superintendent of Schools' recommendation regarding Respondent's future employment was discussed at the Palm Beach County School Board's May 7, 1997, meeting. At the May 7, 1997, meeting, Respondent's attorney argued that the School Board was prohibited by the Americans with Disabilities Act (ADA) from taking adverse action against Respondent and that it was required by the ADA to provide her with an accommodation. The School Board decided not to take any action on the Superintendent of School's recommendation regarding Respondent's future employment until it received further information concerning Respondent's entitlement to protection under the ADA. Correspondence Concerning Respondent's ADA Claim On May 9, 1997, the School District's General Counsel sent Respondent's attorney a letter, which read as follows: On Wednesday, May 7, 1997, you appeared before the board on behalf of Debora Woessner. That evening you advised that Ms. Woessner had sought an ADA accommodation, and that her rights were violated due to the District's failure to accommodate her. As of today's date, we have had no information regarding this employee's request for an accommodation. No later than Monday, May 12, 1997, we would request a letter via facsimile to the attention of Dianne Howard, our Risk Manager, at (561) 434-8103 with regard to the following: Please outline the nature of your client's disability. Please outline how this disability affects her major life activity. Please advise as to the accommodation she is seeking. This information is critical for the District's consideration of your request. The consideration must be arrived on or before May 16, 1997. If this information is not received by Monday, and the meeting cannot be scheduled before May 16, 1997, th[e]n termination which was predicated on criminal activity, admitted by your client, will proceed at the next regularly scheduled Board meeting on May 21, 1997. Respondent's attorney responded to this letter from the School District's General Counsel by letter dated May 12, 1997, which read as follows: I am in receipt of your letter of May 9, 1997 regarding Debora Woessner. For clarification, my statements to the Board indicated that Ms. Woessner was requesting, through her attorney, an accommodation. I further stated that Ms. Woessner was in possession of School Board Policy 3.06, and that the School Board should allow the District's ADA process to run its course before making a decision regarding Ms. Woessner's termination. I did not state that Ms. Woessner's rights had been violated. I stated that the Board should delay acting on the recommendation so that Ms. Woessner's rights would not be violated. Regarding your statement that the District has no information regarding Ms. Woessner's request for an accommodation, I stated at the meeting that (1) Ms. Woessner has been diagnosed with a psychiatric disability specifically defined by the DSM IV, (2) this disability affected a major life activity, i.e., interacting with people, (3) the actions for which the Superintendent recommended discipline for Ms. Woessner were directly related to her disability, (4) my client was directly in the process of getting information required by the district from the individual treating her for her disability, and that the district would be informed as to what accommodation was appropriate. Regarding the request contained in the letter, I spoke with Darren Edwards of your office on the afternoon of May 9, 1997 and informed him that Ms. Woessner would provide the requested information as early as possible. As I have previously informed you, and as I informed Mr. Edwards during the aforementioned conversation, Ms. Woessner obtained a copy of School Board Policy 3.06, and is in the process of complying with its dictates. Because of the nature of the information required by the Policy and the strictness of the Policy, it is not possible for Ms. Woessner to comply with your request that she have all information you requested in Ms. Howard's office by this afternoon. I would further note that this is the first time in the many instances in which I have dealt with the Palm Beach County School District on ADA accommodation questions that a deadline has been imposed on an employee. I have checked Policy 3.06 and can find no mention of a deadline within which an employee must provide the requested information. In short, it appears that Ms. Woessner has been singled out for special treatment. I consider this to be not only inappropriate, but possibly unlawful. I would also point out that your request implies that the information requested should come from me, Ms. Woessner's attorney, and not a mental health counselor. In short, it is my client's intention to comply with the District's ADA policy as quickly as possible. If you have any questions regarding this matter, please do not hesitate to contact my office. In a letter sent to Respondent's attorney on May 12, 1997, the School District's General Counsel acknowledged receipt of his May 12, 1997, letter and further stated the following: Ms. Woessner was reassigned to her home with pay in November, 1996. Over the past six months, and during several conferences with Ms. Woessner, there has never been any mention of her alleged disability or request for an accommodation. The principal confirmed that during the last nine years, Ms. Woessner never indicated she suffered any mental disability. Certainly no request for an accommodation was ever made. However, Ms. Woessner was very aware of our ADA policy since she had requested on prior occasions, ADA accommodations for her allergies. Irrespective of the ADA claim which has only recently been made, Ms. Woessner acknowledged her actions which comprise the felony charges against her. After admitting to the charges, termination proceedings were commenced. It was only at the eleventh hour, when the Board was asked to proceed with her termination of employment, did you state that Ms. Woessner was suffering from a disability. Although the administration sought termination related to Ms. Woessner's admitted criminal behavior, we agreed to consider your request on your client's behalf. We asked you to specify the nature of the disability, how it affected a major life activity, and the specific accommodation she was seeking. Your letter to the District indicates that this information will not be provided in the time frame requested. As a matter of law and in accordance with the very same case you cited (Hindman v. GTE), the District has never been made aware of the disability allegedly suffered by your client at the time of the incident, at the District meeting, or when she was notified of the termination proceedings. There was no request for an accommodation which specifies the accommodation, as required by the ADA either prior to her criminal behavior, nor after she was notified in April of the termination proceedings. The District will proceed with the termination proceedings on May 21, 1997. On May 21, 1997, ten to fifteen minutes before the start of the School Board meeting scheduled for that day, Respondent's attorney handed the School District's Chief Personnel Officer a letter addressed to Diane Howard, the School District's Director of Employee Benefits and Risk Management, which read as follows: Enclosed please find a copy of an affidavit executed by Dr. Mark Ellinger. Dr. Ellinger is Debora Woessner's psychologist and has provided the affidavit to assist Ms. Woessner in obtaining an accommodation for a disability pursuant to School Board Policy 3.06. Ms. Woessner is a teacher assigned to Forest Hill Elementary School, and holds a Professional Services Contract. Her Social Security Number is . . . . As you can see from the Affidavit, Ms. Woessner has had some recent difficulties related to her disability, and has been recommended for suspension without pay and termination by the District. Ms. Woessner's position, which is supported by her Doctor, is that the actions for which she is being terminated are directly related to her disability and that she can continue her teaching position if she is provided with a reasonable accommodation. Ms. Woessner has already provided her doctors with releases so that the School Board can obtain her medical records. Dr. Ellinger's address and telephone number are as follows: . . . . I will provide you with similar information for Dr. Yetz in the near future. Please keep in mind that this correspondence, and the attached affidavit, are confidential pursuant to both the Americans with Disabilities Act and Florida Statutes. As such, copies may not be provided to the press, or any individual not involved with making a determination of whether Ms. Woessner is entitled to an accommodation. If you have any questions regarding the matter covered in this letter or the affidavit, please do not hesitate to contact my office. The affidavit of Dr. Ellinger, which was appended to letter, read as follows: I am a clinical psychologist working in Palm Beach County, and have been treating Debora Woessner since August 15, 1994, for mood and substance abuse problems. In addition to being treated by me, Ms. Woessner sees Dr. Yetz, a [p]sychiatrist, for medication. The specific diagnos[e]s for Ms. Woessner are Depressive Disorder, not otherwise specified (311.00 DSM IV) and Cannabis Dependence (304.30, DSM IV) with sustained partial remission.4 The medication Ms. Woessner takes significantly reduces the severity of her disorder.5 Ms. Woessner's disorders are directly related to her to having grown up in a situation where she was physically and psychologically abused, which later manifested itself in psychiatric problems such as depression, substance abuse, and relationship problems. Ms. Woessner's disorders interfere with her ability to interact with others, and impact her work. More specifically, Ms. Woessner's disorder, particularly in the absence of the medication prescribed by her psychiatrist, significantly restricts her ability to interact with others as compared to the average person in the general population. Ms. Woessner was involved in an incident in November of 1996 where she damaged a man's trailer and used his credit cards to make purchases without his assent. Had it not been for her abusive childhood and its subsequent psychiatric illness, Ms. Woessner would not have acted out in such an aggressive manner. Her psychological problems directly caused and are related to the incident that occurred in November. It is highly unlikely that Ms. Woessner will repeat such actions in the future.6 Ms. Woessner is a good, dedicated and caring professional who genuinely wants the best for her students. Her profession has always given a sense of pride, meaning and structure to her life. Ms. Woessner loves her work, which is a central part of her identity. Ms. Woessner has been a hard worker in psychotherapy and has with tenacity chipped away at her various problems with success. She has been consistent in therapy and follows up on recommendations to better herself and resolve her problems.7 Ms. Woessner does not represent a threat to herself or anyone and her problems are treatable. Ms. Woessner should receive a leave of absence until the beginning of the 1997-1998 school year so that she can resolve her problems. During this time, Ms. Woessner will be treated for her problems and will undergo testing to ensure that her problems have been resolved.8 It was not until September of 1997 that Howard received the May 21, 1997, letter from Respondent's attorney's and the attached affidavit of Dr. Ellinger. Upon receiving these documents, she prepared and then sent to Respondent's attorney the following written response: I am in receipt of your letter dated May 21, 1997 and directed to my attention. I am sorry for the delay in response, however, I just received this letter on September 17. It came to my attention through our Legal Counsel as they were preparing for a hearing. I am sorry I never received this before, but I will try to answer it now. Your letter indicates you are asking for an accommodation for Debora Woessner. You are providing an affidavit from a clinical psychologist indicating that Ms. Woessner suffers from depressive disorder and cannabis dependence. You do not state a specific type of reasonable accommodation in your letter, however, the affidavit provided by Mark Ellinger, the Clinical Psychologist, indicates that allowing Ms. Woessner a leave of absence for the rest of the school year would give her time to treat [her] for her problems. While a depressive disorder may be considered a disability under the ADA, and a leave of absence can be an acceptable accommodation, we do not usually require that leave requests go through as an ADA accommodation. The School District leave policy is so generous that we would allow her to have a medical leave without going through the ADA process. I do understand that Ms. Woessner has since been terminated from the School District and that the first time that the ADA accommodation request was brought up was at a School Board meeting when the School Board was considering her termination. Apparently your client was terminated for misconduct, specifically destruction of property, breaking and entering and theft. Even if I could consider making an accommodation for your client's problems, I could never accommodate destruction of property, breaking and entering and theft. We can accommodate time to take the medication, other things like leave of absence, but not improper behavior. I am enclosing a copy of the new School Board policy with a form that should be completed if you think you have anything else to offer that could be considered. I do believe that the time to bring up an accommodation request would have been prior to a termination hearing. The School Board's Action Contrary to what Howard had stated in her letter, Respondent had not been terminated by the School Board. The School Board had merely suspended Respondent without pay (effective following the end of the 1996-1997 school year) pending the outcome of this dismissal proceeding. The Collective Bargaining Agreement As a teacher employed by the School District, Respondent is a member of a collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (CTA) and covered by a collective bargaining agreement between the School District and the CTA (CTA Contract). Article I, Section D, of the CTA Contract addresses the subject of "management rights." It provides as follows: The [School] Board hereby retains and reserves unto itself, the Superintendent, the principals and other administrative personnel of the School System, all powers, rights, authority, duties and responsibilities, and the exercise thereof, as conferred upon and vested in them by the Constitution and the Law and the Regulations of the United States and the State of Florida, and the policies of the School Board of Palm Beach County, in keeping with the provisions of this Agreement. Article II, Section M, of the CTA Contract addresses the subject of "discipline of employees." It provides as follows: Without the consent of the employee and the Association [CTA], disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative. An employee against whom action is to be taken under any Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations,9 progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve months of the action/inaction of the employee which led to the notation. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with provisions of this Agreement, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken include either a suspension or dismissal, the grievance shall be initiated at STEP TWO.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing her as an employee of the School Board. DONE AND ENTERED this 10th day of April, 1998, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1998.
The Issue The issue is whether Respondent Brenda Bohlinger’s conduct constitutes just cause for her dismissal from employment with Petitioner Polk County School Board (School Board).
Findings Of Fact The School Board is duly constituted and charged with the duty to operate, control, and supervise all free public schools within Polk County, Florida, pursuant to article IX, section 4, subsection (b) of the Florida Constitution and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Ms. Bohlinger was employed by the School Board as a teacher pursuant to a professional services contract. She has been employed with the School Board for approximately 13 years. During the 2015-2016 school year, Ms. Bohlinger was an itinerant physical education (PE) teacher for the Reaching Every Adolescent Learner Academy (the REAL Academy). Ms. Bohlinger began her responsibilities as the itinerant PE teacher on October 16, 2015, and was relieved of her duties on March 7, 2016. The REAL Academy is a dropout prevention program created for students in fourth through 12th grades who are two or more years behind academically. The REAL Academy was started in and for the 2015-2016 school year and uses a modified educational curriculum which allows students to catch up academically and graduate on time. There are four separate locations in Polk County that house components of the REAL Academy: Auburndale High School (Auburndale), which is located in Auburndale, Florida; the Dwight Smith Center (Smith Center), which is located in Lakeland; the Gause Academy, which is located in Lakeland; and Boone Middle School (Boone), which is located in Haines City. Ms. Bohlinger’s school duty day began at Auburndale where she would teach two separate PE classes. Her first class started at 7:55 a.m. and her second class ended at 9:42 a.m. Ms. Bohlinger then left Auburndale and drove to the Smith Center where she taught two more PE classes. It took approximately 28 to 33 minutes to travel from Auburndale to the Smith Center. Ms. Bohlinger’s first class at the Smith Center started at 10:20 a.m. and her second class ended at 12:37 p.m. After the second class ended at the Smith Center, Ms. Bohlinger would drive to Boone where she taught two more PE classes. Ms. Bohlinger’s first class at Boone started at 1:53 p.m. and her last class of the day ended at 3:40 p.m. When Ms. Bohlinger had the Boone students at PE class, the Boone teachers would have their allocated planning period. In the event Ms. Bohlinger did not provide a PE class, the Boone teachers did not have a daily planning period. School employees who travel from one teaching location to another teaching location are compensated for their mileage at a specified rate.2/ Each traveling employee is responsible for completing a mileage reimbursement form (form). The completed form is submitted to the employee’s immediate supervisor, who reviews and approves it, and then submits it to the district for processing. When she was first hired for the REAL Academy, Ms. Bohlinger asked Robert Hartley, the initial REAL Academy principal/director for instructions on how to complete the form. Mr. Hartley was unable to provide that instruction and Ms. Bohlinger obtained the instructions on how to complete the form from School Board personnel. At the end of each calendar month, Ms. Bohlinger completed the mileage reimbursement form for her trips between Auburndale, the Smith Center, and Boone. The distance claimed between the three learning centers is 32 miles, which was not contested. It took approximately 30 minutes to travel from Auburndale to the Smith Center, and approximately 40 minutes for Ms. Bohlinger to travel from the Smith Center to Boone. The School Board’s reimbursement rate is $.575 per mile. During the 2015-2016 school year, Principal Wilson was a “resource teacher,” working mainly at Auburndale and Boone. He oversaw the REAL Academy programs at those locations, and reported to Mr. Hartley. At some time after the middle of the 2015-2016 school year, Principal Wilson researched information as to any dates that Ms. Bohlinger missed PE classes for all or part of a school day. Principal Wilson identified seven3/ dates that Ms. Bohlinger was not at Boone. They are: November 3, 2015 The first quarter grades were past due. Ms. Bohlinger had started late in the quarter; however, it was determined that she would assign first quarter PE grades to the REAL Academy PE students. Ms. Bohlinger was told she had to enter the grades for her students that day. Principal Wilson’s “understanding” was that Ms. Bohlinger’s grading “would be done in Lakeland at the Dwight Smith Center.” Principal Wilson did not see Ms. Bohlinger at the Smith Center, and did not know when or where she entered the grades. Principal Wilson maintained that Ms. Bohlinger did not go to Boone on November 3, because he had to calm Boone teachers that it was not Ms. Bohlinger’s choice to miss PE, but that she was required to enter grades.4/ Ms. Bohlinger was at the Smith Center (her second school), when she was told she had to assign PE grades to the students. Ms. Bohlinger had to wait for Gwen Porter, a guidance counselor, to assist her because Ms. Bohlinger did not have access to a computer. The two women started working on the grades after 1:00 p.m. and she completed entering the grades prior to 3:00 p.m. Ms. Bohlinger testified she traveled to Boone after she finished with the grading. However, with the allocated time to make the trip, approximately 40 minutes, there was not sufficient time to arrive at Boone to conduct the last PE class of that day. There was no testimony that Ms. Bohlinger actually conducted a PE class at Boone on that day. Ms. Bohlinger’s testimony is not credible. December 2, 2015 A district level/REAL Academy meeting (district meeting) was scheduled for two locations (Boone before school started and the Smith Center in the afternoon) in an effort to have as many participants as possible. Ms. Bohlinger learned of the district meeting either the Friday or Monday before the Wednesday district meeting. Ms. Bohlinger was to attend the meeting at the Smith Center in Lakeland. Ms. Bohlinger “forgot” about the district meeting and “out of habit,” she went from Auburndale to the Smith Center and then on to Boone. Only after she got to Boone did she “realize” there was a district meeting, and she then returned to the Smith Center. Ms. Bohlinger claimed she made a “mistake” in traveling to Boone on December 2, 2015. Ms. Bohlinger’s mileage claim was inappropriate because she did not fulfill any PE teaching responsibilities at Boone. January 4, 2016 Following the winter holiday, the first school day for students was January 4, 2016. Ms. Bohlinger worked at Auburndale, the Smith Center, and then traveled to Boone. After resting in her car at the Boone location, Ms. Bohlinger called Principal Wilson, told him she was ill, and would be going home. Principal Wilson recalled that Ms. Bohlinger called him, said she was ill and would not finish out the school day. Principal Wilson thought Ms. Bohlinger was calling from her car, but he was uncertain of where she was at the time. Ms. Bohlinger’s explanation is credible. January 5, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 5, 2016. January 6, 2016 Ms. Bohlinger was out sick. Ms. Bohlinger failed to accurately record that she did not travel to any of her assigned schools on January 6, 2016. February 1, 2016 Ms. Bohlinger traveled to her three assigned schools. However, she drove to Boone, the check engine light came on in her car. After she arrived at Boone, she contacted Principal Wilson and asked if he was on the Boone campus. Upon understanding that Principal Wilson was not on the Boone campus, Ms. Bohlinger proceeded to inform him of her car issue, and that she was leaving to attend to her car. Ms. Bohlinger may have driven to Boone, but she did not teach her classes on the Boon campus. Ms. Bohlinger should not have claimed mileage for February 1, 2016. Respondent’s Prior Discipline On May 3, 2013, Ms. Bohlinger had a conference with Faye Wilson, the principal at Jesse Keen Elementary School. As a result of that meeting, Ms. Bohlinger was issued a verbal warning with a written confirmation regarding several instances when Ms. Bohlinger left the school campus before the end of her contractual day. On October 12, 2015, Ms. Bohlinger was suspended without pay for two days (Friday, October 9, 2015, and Monday, October 12, 2015). This suspension was the result of an investigation, to which Ms. Bohlinger “admitted that [she] had ‘peeked in on and listened to’ mental health counseling sessions with students, in which a student’s private information was discussed.”5/ Following the discipline listed in paragraph 15 above, Ms. Bohlinger was assigned to be the physical education teacher for the REAL Academy effective October 13, 2015. The testimony and exhibits establish that on five days Ms. Bohlinger submitted requests for mileage reimbursements to which she was not entitled. Ms. Bohlinger’s explanation that she felt ill and had to leave after arriving at Boone on January 4, 2016, is found to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order terminating Ms. Bohlinger’s employment. DONE AND ENTERED this 28th day of November, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 28th day of November, 2016.
