The Issue The issue in this case is whether there is just cause for Broward County School Board to suspend Lula Faison for 10 days without pay based upon the allegations made in its Administrative Complaint filed on October 11, 2017.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Broward County. Art. IX, Fla. Const.; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Faison was hired by the School Board on February 10, 2004. She started her employment with the School Board at Sunset Center School, an off-campus program at Smith Community Health, where she taught for approximately four years. She was employed pursuant to a professional services contract with Broward County. Faison is a certified Exceptional Student Education ("ESE") and English for Speakers of Other Languages ("ESOL") teacher. She has worked with Emotional/Behavioral Disability ("EBD")1/ students her whole career with Broward County. She started working for Pompano Beach Elementary School ("Pompano") during the 2010-2011 school year as an ESE teacher for EBD students. During her first two years at Pompano, she had fourth- and fifth-grade EBD students. During the 2015-2016 school year, Faison's classroom was mixed with 10 EBD students in grades kindergarten, first, second, and third, with ages ranging from six to 10 or 11. The younger kids mimicked the older students' behavior, and it was challenging for Faison to control the classroom. Faison's classroom had the highest rate of incidents compared to the other EBD classrooms in the cluster at Pompano. Faison had both a paraprofessional, Hunt, and a substitute teacher, Popov, to assist in her classroom to help bring order. Hunt was assigned to assist Faison in her classroom with point sheets, monitoring the children, helping isolate behaviors, as well as manage and teach students. A.J. was approximately nine years old when he joined the EBD program during the 2015-2016 school year. A.J. was an enjoyable kid, but had numerous behavioral episodes. He was very explosive and lacked a concern for safety. He had various home issues going on. Additionally, A.J. was also a runner2/ and he had nine elopements3/ from January to April 2016. Pompano's protocol for if a student elopes was that administration was notified; the elopement was communicated over the school walkie-talkie system to notify staff to be aware to look out for the student; once the student was located, the locator was to keep eyes on the student; and typically a separate individual went after the student while the other watched. Safety is always the priority in any elopement. Faison was trained in the elopement protocol and was familiar with its process. While at Pompano, Faison never had any difficulty implementing or dealing with elopement protocols. On April 18, 2017, Faison reported to work late. Upon her arrival, Hunt had written the morning activities on the board and was instructing her classroom. Soon thereafter, Popov arrived and Faison took her class out to the playground. Popov assisted Faison taking the students outside, but she only remained about five minutes and then left Faison alone with the students. When no one came out to assist Faison with the students on the playground, she decided to take the students back inside. At the time, A.J. was playing with sticks. Faison instructed A.J. to put the sticks down because he could not bring them inside. She encouraged him to put them under the bench to retrieve and play with later. A.J. refused to put the sticks down and wanted to bring them inside. Faison told A.J. to walk with her and he did. Faison walked the students inside from off the playground headed to her classroom and ran into Popov. Faison had Popov walk the kids the remainder of the way into Faison's classroom so that Faison could deal with A.J. and the sticks. Faison had been trained in Professional Crisis Management ("PCM"). She evaluated the situation with A.J. and she determined that the best behavioral technique and de- escalation strategy to get A.J. to comply and put the sticks down, was to ask Felix to assist with A.J. Felix had a good relationship with A.J. Previously, A.J. had responded well to Felix and Felix had been able to calm A.J. down. Faison did not want A.J. to hurt anyone with the sticks. Faison went to the TAB room4/ where Felix was assigned. A.J. still had the sticks and was behind Faison in the hallway when she approached Felix's classroom.5/ Faison opened the door to the TAB room and observed that Felix had several students in his room that he was supervising when Faison arrived and that Felix was the only adult present. Faison stood in the doorway and explained to Felix that A.J. was not listening to her. She wanted to see if Felix could assist her and get him to come inside the classroom without the sticks. Faison requested that Felix help her out and speak to A.J. Faison held the conversation with Felix at the TAB room door with her body halfway in the door and Felix standing in the doorway on the TAB room side. When Faison turned around to address A.J. in the hallway, he was not there. Felix never saw A.J. in the hallway. When Faison discovered A.J. was no longer in the hallway, she thought A.J. was outside of Felix's classroom and she made a reasonable request that Felix call him in through the side door of the TAB classroom. Felix did not indicate to Faison that he either agreed to or refused to assist with or go after A.J. Faison left the TAB room believing that Felix was going to get A.J., which was a mistake because Felix did not follow up with A.J., unbeknownst to Faison. Faison's actions of not following up and believing Felix had followed up with A.J. were an isolated incident of misjudgment. After their discussion, Faison returned to her classroom. Later that morning, Pompano's secretary put out an elopement call on the Pompano walkie-talkie system. Faison did not receive the call because she did not have a walkie-talkie on April 18, 2016. Felix heard the elopement call and walked outside of the door towards the parking lot and emerged near the entrance of the school. There, Felix saw A.J. with a stick by the school marquee near the outer boundary of the school on the far end of the school property. Hunt also heard the elopement call on the walkie- talkie and went outside to follow the Pompano elopement protocol. Felix and Hunt worked together. Felix went to the left and Hunt went to the right to encircle A.J. When A.J. noticed them, he took off running toward 13th Avenue. Hunt and Felix caught A.J. approximately a block away from the school at the intersection of Northeast 8th Street and Northeast 13th Avenue near the baseball field. Following elopement protocol, Felix and Hunt let the administration know by walkie-talkie that they had caught up to A.J. The resource officer arrived and put A.J. in the patrol car because A.J. was combative. Principal Larson also appeared at the scene to check and see if everything was fine. Afterwards, Larson discussed A.J.'s elopement with Felix and decided he needed to follow up with Faison to determine what happened with A.J. When A.J. was returned to campus, he went to the TAB room to cool down and to determine why he eloped. Faison was not aware that A.J. had eloped. She was taking her students to lunch alone,6/ midway through the hallway about to lead the kids into the cafeteria, when Larson caught up with her and made the reasonable request that she come to him to have a discussion. He wanted to discuss the A.J. incident. Faison told Larson no when he told her to step aside and talk with him. Larson addressed Faison twice more and requested that she come to him. Faison refused to approach or talk to Larson. The third time Larson requested that Faison come to him, he informed her that she was being insubordinate. Faison felt she should not have left the kids and responded by telling Larson "I've been insubordinate all year." She finished walking the kids to the cafeteria following Larson's instructions. Broward County School Board's Police Special Investigative Unit and Broward Sheriff's Child Protective Investigations Services investigated A.J.'s April 18, 2016, off- campus elopement. Onagoruwa investigated the incident within 24 hours, including interviewing A.J. and closed her case as non-substantiated because no physical harm occurred to A.J. While at Pompano, Faison's previous discipline included: a summary memo dated May 2, 2014, regarding IEP deadlines; a second summary memo for failure to complete IEPs on time dated May 2, 2015; a disciplinary memo dated October 27, 2015, for failure to adhere to IEP deadlines and verbal reprimand of November 3, 2015; a February 1, 2016, written reprimand following a pre-disciplinary hearing meeting for failure to submit lesson plans and a comprehensive behavior plan; and a second written reprimand dated March 16, 2016, for failing to complete third grade portfolios and insubordinate behavior of hanging up the phone on Larson and refusing to meet with him in his office. The March 16, 2016, written reprimand specifically warned Faison about insubordination and stated: [Y]ou received notification regarding your insubordinate behavior on February 22, 2016, when you hung up the pone on me after I asked you to come to my office for a meeting and on March 2, 2016 for refusing to meet with me for non-disciplinary reasons. * * * [Y]our gross insubordination [is] a serious breach of conduct that cannot be tolerated. Therefore, I am issuing you a written reprimand that is consistent with School Board Policy 4.9. Please be advised that any further failure on your part to perform to the standards established for the effective and productive performance of your job duties as a teacher will result in further disciplinary action, up to and including termination of your employment. Petitioner ultimately filed charges against Faison by Administrative Complaint dated October 11, 2017, that included charges of misconduct in office, incompetency, gross insubordination, willful neglect of duty, and violation of School Board Policy 4008. On November 7, 2017, the School Board took action to suspend Respondent for 10 days without pay. Respondent contested the reasons for suspension.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Broward County School Board enter a final order rescinding the 10-day suspension with back pay. DONE AND ENTERED this 6th day of July, 2018, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 6th day of July, 2018.
