The Issue Whether Petitioner, Lake County School Board, had just cause to terminate Respondents for the reasons specified in the agency action letters dated April 17, 2018.
Findings Of Fact Petitioner, Lake County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within Lake County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. Mr. Rosier has been employed at Groveland Elementary School (Groveland) in Lake County, Florida, for three years. During the 2016-2017 and 2017-2018 school years, Mr. Rosier was the Instructional Dean. One of Mr. Rosier’s duties was to assist teachers with students who have behavioral problems and liaison with parents of these students. Mr. Rosier also conducted in- school suspension of students. Mr. Rosier also had a contract supplement to assist with students who were on campus after school hours because they either missed the bus or were not picked up by their parent or guardian on time. Mr. Rosier assisted by keeping the student safe and contacting the emergency contact on file for the student to find a way to get the student home. Ms. Lassen has taught at Groveland for four years. She taught first grade during the 2016-2017 and 2017-2018 school years. Petitioner Lassen is an “inclusion teacher,” meaning her classroom is a combination of students receiving Exceptional Student Education (ESE) services and students with no need for services. Ms. Lassen has no special training in ESE services for children with behavioral challenges. ESE students in her classroom are “push in, pull out,” meaning an exceptional education teacher comes in to work with some of the students in the classroom, and other students are pulled out of the classroom to work with an exceptional education teacher. Ms. Lassen was not happy at Groveland. She enjoyed teaching and was passionate about her students achieving their learning potential. However, she was frustrated by what she saw as a lack of needed services for her ESE students. Ms. Lassen applied for a transfer during the 2016 school year, but the transfer was denied. During the 2017-2018 school year, Ms. Lassen had eleven ESE students in her classroom, four of whom had severe behavioral issues. Some of her students were violent, even trying to harm themselves. She found it stressful to corral children who were throwing things in the classroom, especially at other children, while trying to teach the required lessons. She often found herself dealing with parents who were upset about their ESE child being disciplined for their behaviors, or who were upset about the treatment of their child by an ESE student. To address these concerns, Ms. Lassen frequently met with Mr. Rosier. Toward the end of the 2017-2018 school year--in March 2018 particularly--they met roughly twice a week. The two met once in Mr. Rosier’s office and sometimes in the portable where Mr. Rosier conducted in-school suspension; however, they met most frequently in Ms. Lassen’s classroom. The meetings usually occurred around 4:00 p.m., after students were dismissed at 3:30 p.m. and Mr. Rosier’s after- school responsibilities ended. Ms. Lassen usually left the school between 4:15 p.m. and 4:30 p.m. to pick up her own children from school and daycare and take them to after-school activities. During the meetings, Ms. Lassen discussed with Mr. Rosier the behavioral challenges she faced with students in her classroom, as well as the issues with parents. Mr. Rosier had the responsibility to deal with parents, often conducting parent conferences to address issues arising in the classroom. Ms. Lassen and Mr. Rosier became friends, and occasionally discussed personal matters, in addition to classroom and parent issues. Sometimes Ms. Lassen would become emotional. Mr. Rosier assured her he would work to get the help the students needed. Kimberly Sneed was the Groveland Principal during the 2017-2018 school year. On April 2, 2018, Mr. Sneed entered Ms. Lassen’s classroom shortly after 4:00 p.m. Assistant Principal Joseph Mabry had suggested to Ms. Sneed that she should look into why Mr. Rosier was in Ms. Lassen’s classroom at that time. When Ms. Sneed arrived, she observed that the lights were turned off and the classroom was empty. She walked to the classroom supply closet, inserted her key, and opened the door, which opens inward. Just as she was pushing the door open, Ms. Lassen pulled the door open to exit the closet with her purse and supply bag in hand. Ms. Sneed did not try the closet door handle first to determine whether the closet was locked. She simply inserted the key in the lock and pushed open the door. She testified that she was not certain the closet door was actually locked. The closet light was off when Ms. Lassen opened the closet. Ms. Lassen testified that she had just switched the light off before opening the door to exit the closet. Ms. Sneed turned the light switch on as she entered the closet. Ms. Lassen was surprised to see Ms. Sneed and asked if she could help her find something. Ms. Sneed asked Ms. Lassen why she had been in a dark closet. How Ms. Lassen replied to Ms. Sneed’s question was a disputed issue. Ms. Lassen maintains she said, “Ms. Sneed, you don’t understand, all it was, it was just a kiss, a kiss on the cheek, nothing more.” Ms. Sneed maintains Ms. Lassen said, “We were only kissing, we weren’t doing anything, no sex or nothing.” Ms. Lassen promptly left to pick up her children. Ms. Sneed entered the closet and observed Mr. Rosier standing at the back of the L-shaped closet, with his back to the door. Mr. Rosier was fully clothed, but his shirt was untucked and his glasses were off. Ms. Sneed did not question Mr. Rosier. Instead she quipped sarcastically, “Really, Mr. Rosier? Really?” Mr. Rosier did not turn toward Ms. Sneed or otherwise respond to her immediately. As Ms. Sneed exited the closet and proceeded to leave the classroom, Mr. Rosier called after her and asked if he could talk with her in her office. What else Mr. Rosier said to Ms. Sneed at that time was also a disputed issue. Ms. Sneed testified that Mr. Rosier stated, “I’ll admit we were kissing, and it turned into touching, but nothing else.” Mr. Rosier was not certain what exactly he said, but admitted that he did use the word “kiss.” He testified that everything happened quickly. He was embarrassed and Ms. Sneed was angry. The following day, Ms. Sneed reported the incident to the School Board Employee Relations Supervisor Katherine Falcon. That same day, both Ms. Lassen and Mr. Rosier were interviewed separately by Ms. Falcon. Ms. Falcon drafted an interview questionnaire based solely on her telephone conversation with Ms. Sneed that morning. The questionnaire contained the following seven questions: For the record state your name. What is your current position? How long have you been in your current position? Yesterday, Ms. Sneed found you and another teacher in a locked dark closet. Can you explain? Is this the first time you have engaged in this activity on campus? Did you share any information about this incident with anyone else? Is there anything else you would like to say? Ms. Falcon asked the questions, and David Meyers, Employee Relations Manager, typed Respondents’ answers. Ms. Falcon printed the interview record on site and presented it to each respective Respondent to review and sign. The report states Ms. Lassen’s response to Question 4 as follows: The closet was unlocked. It is always unlocked. I just kissed him. It didn’t go any further. There was no touching or clothing off. Nothing exposed. Nothing like that has ever happened before. Yesterday was more, like a kiss goodbye. I was getting ready to leave and getting my stuff. He was standing by the door. He was standing by my filing cabinet. Nobody ever comes in there during the day. Sneed wanted to know what we were doing in there. We told her we were fooling around a little bit, kissing. Ms. Lassen signed her interview report without asking for clarifications or changes. Ms. Lassen testified that she did not review the interview report before signing, did not understand it to be any form of discipline, and was anxious to return to her classroom because her ESE students do not do well in her absence. At the final hearing, Ms. Lassen denied stating anything about “fooling around a little” with Mr. Rosier. In response to the same question, Mr. Rosier’s report states the following: The closet wasn’t locked. This teacher, Katie Lassen and I have become good friends. Yesterday we caught ourselves being too close, kissing, hugging . . . . We were first in the main classroom. When we began to kiss we went in the closet. There was a knock on the door. It was Ms. Sneed. My clothes were kind of wrangled. Mr. Rosier also signed his interview report without asking for clarifications or changes. At the final hearing, Mr. Rosier denied stating that he and Ms. Lassen were “kissing and hugging” or that “when we began to kiss we went into the closet.” As to his statement that “we caught ourselves becoming too close,” he testified that he meant they had begun discussing personal issues in addition to Ms. Lassen’s concerns with her ESE students. Ms. Lassen and Mr. Rosier testified as follows: they were discussing her concerns about a particular ESE student who was very disruptive and threatened to harm himself. Ms. Lassen was emotional. Ms. Lassen proceeded into the closet to get her things so she could leave to pick up her children and get them to after-school activities. Just inside the closet, Ms. Lassen broke down crying again. Mr. Rosier entered the closet, closing the door behind him (allegedly to keep anyone from seeing Ms. Lassen cry), put his hands on her shoulders and told her to get herself together and not let anyone see her crying when she left the school. She collected herself, thanked him, gave him a hug and they exchanged kisses on the cheek. Respondents’ stories at final hearing were nearly identical, a little too well-rehearsed, and differed too much from the spontaneous statements made at the time of the incident, to be credible. Based on the totality of the evidence, and inferences drawn therefrom, the undersigned finds as follows: Mr. Rosier was consoling Ms. Lassen and the two adults became caught up in the moment, giving in to an attraction born from an initial respectful working relationship. The encounter was brief and there is no credible evidence that Respondents did anything other than kiss each other. Both Respondents regret it and had no intention to continue anything other than a professional relationship. This incident occurred after school hours, sometime between 4:00 p.m. and 4:30 p.m. on April 2, 2018. The only students on campus were at an after-school care program in a different building across campus. No one witnessed Respondents kissing or entering the closet together. Only Ms. Sneed witnessed Respondents emerging from the closet. Both Respondents were terminated effective April 23, 2018. Administrative Charges The school board’s administrative complaints suffer from a lack of specificity. Both employees are charged with “engaging in sexual misconduct on the school campus with another school board employee which is considered Misconduct in Office,” in violation of the Principles of Professional Conduct for Educators (Principles). The administrative complaints do not charge Respondents with any specific date, time, or place of particular conduct which constitutes “sexual misconduct.”2/ Moreover, the School Board introduced no definition of sexual misconduct. The School Board inquired about some specific conduct during the Employee Relations interviews with Respondents. Ms. Falcon asked Respondents about being found together in a “locked dark closet.” The School Board failed to prove that the closet was either locked or dark while Respondents were in the closet. It appears the School Board bases its charge of Misconduct in Office, in part, on an allegation that the Respondents had “engaged in this activity on campus” on dates other than April 2, 2018. When Ms. Sneed went to Ms. Lassen’s room on April 2, 2018, she was acting upon a report that Mr. Rosier went to Ms. Lassen’s room every day at 4:00 p.m. There is no reliable evidence in the record to support a finding to that effect. The report that Mr. Rosier “went to Ms. Lassen’s classroom every day at 4:00,” was hearsay to the 4th degree,3/ without any non-hearsay corroborating evidence. Petitioner did not prove Respondents were ever together in a closet, much less a dark closet, on campus any date other than April 2, 2018. Finally, it appears the School Board bases its charges, in part, on an allegation that Mr. Rosier was not fulfilling his after-school duties because he was spending too much time with Ms. Lassen. To that point, Petitioner introduced testimony that on the Friday after spring break in March, Mr. Rosier was not to be found when the administration had to deal with a student who had either missed the bus or was not picked up on time. Ms. Sneed testified that Mr. Rosier came through the front office, observed the student there with herself and Mr. Mabry, and left through the front office. Ms. Sneed assumed Mr. Rosier had left for the day, but that when she left the school she saw his car in the parking lot. Mr. Rosier recalled that particular day, and testified that, as two administrators were attending to the student, he did not see the need for a third. He chose instead to keep his appointment with Ms. Lassen to discuss her difficult students. Petitioner did not prove that Mr. Rosier neglected either his after-school or any other duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order dismissing the charges against Respondents Katie Lassen and Alan Rosier, and award back pay and benefits retroactive to April 23, 2018. DONE AND ENTERED this 3rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of August, 2018.
The Issue The issue in this case is whether the Respondent, Angel Guzman, committed the violations alleged in a Notice of Specific Charges filed by the Petitioner, the School Board of Miami-Dade County, Florida, on November 14, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Miami-Dade County School Board (hereinafter referred to as the "School Board"), is 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. Article IX, Florida Constitution; and Section 230.03, Florida Statutes. At all times material to this proceeding, Angel Guzman was employed as a teacher by the School Board and assigned to Miami Edison Middle School (hereinafter referred to as "Edison"). Mr. Guzman is and has been employed by the School Board pursuant to an annual service contract. Prior to his employment by the School Board, Mr. Guzman was employed by New York City as a teacher assistant for three years and as a teacher for four years. He has been employed as a graphic communications teacher by the School Board since 1998, approximately two and a half years. Prior to the incidents that are the subject of this proceeding, Mr. Guzman had never been the subject of a School Board personnel investigation. The February 16, 2001, Incident On February 16, 2001, Mr. Guzman was handing out reading logs in a FCAT preparation class at Edison. The students in the class were seventh graders. Sherwin JeanPierre, a student in the class, and another student asked their fellow student, Maurice Barnhill to get their reading logs from Mr. Guzman. Maurice picked up the logs, but was confronted by Mr. Guzman who, when he learned that Maurice was picking up logs for others, snatched the logs out of his hands and told him to return to his seat. An argument between Mr. Guzman and Maurice ensued. The teacher and student yelled at each other, Mr. Guzman forcefully pushed Maurice on the shoulder, and Mr. Guzman said "coño" to Maurice, which means "damn" in Spanish. Mr. Guzman eventually became so angry that he grabbed a wooden stool located between him and Maurice, swung it toward Maurice, and hit Maurice on the leg with the stool. While the stool hurt Maurice, he suffered no significant injury. The Second February 2001 Incident Following the February 16, 2001, incident, Mr. Guzman and another student were involved in a verbal confrontation. The situation was defused by Theron Clark, an Assistant Principal at Edison, and a security monitor. Following the confrontation, Mr. Clark and Dr. Peggy Henderson Jones, another Assistant Principal, met with Mr. Guzman. At this meeting, Mr. Guzman indicated that he was very stressed and did not want to return to his class. Mr. Guzman was allowed to go home the day of the incident and was subsequently referred to the Employee Assistance Program. Disciplinary Action Against Mr. Guzman for the February 16, 2001, Incident A conference-for-the-record (hereinafter referred to as the "conference") was held with Mr. Guzman on March 6, 2001, by Ronald D. Major, the Principal at Edison. The conference was attended by Mr. Major, Mr. Theron, Eduardo Sacarello, a United Teachers of Dade representative, and Mr. Guzman. The purpose of the conference was to discuss Mr. Guzman's non-compliance, during the February 16, 2001, incident with Maurice Barnhill, with school rules, School Board Rules 6Gx13-5D-1.07, dealing with corporal punishment, and 6Gx13-4A-1.21, dealing with employee conduct, and the Collective Bargaining Agreement between the School Board and the United Teachers of Dade. During the conference, Mr. Guzman was advised that a letter of reprimand would be issued, and he was directed to immediately implement procedures for the removal of disruptive students consistent with the faculty handbook. Mr. Guzman was also warned that any recurrence of the type of violation committed by him during the February 16, 2001, incident would result in further disciplinary action. A written reprimand to Mr. Guzman was issued on March 7, 2001, by Mr. Major. In the reprimand, Mr. Major again warned Mr. Guzman that any recurrence of the infraction would result in additional disciplinary action. The April 25, 2001, Incident On April 25, 2001, during a class under Mr. Guzman's supervision, Mr. Guzman caused a document to be printed from a class computer. A student took the paper and gave it to another student in the class, Ian Lightbourne, who asked for the paper. Ian placed the paper, even though it did not belong to him, in his book bag. When Mr. Guzman came to retrieve the paper he had printed, found it was gone, and asked if anyone knew what had happened to it. Although no one answered, Mr. Guzman suspected Ian and asked him to open his book bag. Ian complied and Mr. Guzman found the paper. Mr. Guzman became irate and began yelling at Ian to "not touch my things." Mr. Guzman then grabbed Ian by the arm and started to pull him toward the front of the classroom. Ian, who was sitting on a stool, lost his balance and fell to his knees. Mr. Guzman continued to pull Ian, who began to cry and yell, "Let me go," the length of the classroom on his knees. Mr. Guzman pulled Ian to a corner of the classroom where he banged Ian's arm against a metal darkroom door. Ian had previously broken the arm that Mr. Guzman grabbed and had only recently had the cast removed. Although the incident did not result in any serious injury to Ian, it was painful and caused his mother to seek medical attention for her son. On April 27, 2001, as a result of the April 25, 2001, incident, Mr. Guzman was assigned to alternative work at his residence, with pay. Mr. Guzman was not allowed to have any contact in his assignment with students. On August 14, 2001, the County Court in and for Dade County, Florida, entered a "Stay Away Order" in Case No. M0130143 requiring that Mr. Guzman stay away from, and have no contact with, Ian. Disciplinary Action Against Mr. Guzman for the April 25, 2001, Incident On August 29, 2001, another conference-for-the-record (hereinafter referred to as the "second conference") was held. The second conference was attended by Julia F. Menendez, Regional Director, Region IV Operations of the School Board; Sharon D. Jackson, District Director; and Mr. Guzman. The second conference was held at the School Board's Office of Professional Standards. The second conference was conducted to discuss Mr. Guzman's performance assessments, non-compliance with School Board policies and rules regarding violence in the workplace and corporal punishment, insubordination, noncompliance with site directives regarding appropriate use of discipline techniques, violation of the Code of Ethics and Professional Responsibilities, and Mr. Guzman's future employment with the School Board. At the conclusion of the second conference, Mr. Guzman was informed that his alternative work assignment would be continued, that his actions would be reviewed with the Superintendent of Region IV Operations, the Assistant Superintendent in the Office of Professional Standards, and Edison's principal, and he was directed to refrain from touching, grabbing, hitting, or dragging any student for any reason. Subsequent to the second conference, the School Board's Office of Professional Standards concluded that Mr. Guzman had violated School Board and state rules. Therefore, an agenda item recommending dismissal of Mr. Guzman was prepared for the School Board to consider. That agenda item was discussed with Mr. Guzman on October 16, 2001, and was considered at the School Board's meeting of October 24, 2001. At its October 24, 2001, meeting, the School Board suspended Mr. Guzman without pay and approved the initiation of dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision of the School Board of Miami-Dade County, Florida, suspending Angel Guzman without pay be sustained and that his employment with the School Board of Miami-Dade County, Florida, be terminated. DONE AND ENTERED this 27th day of March, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 27th day of March, 2002. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Frank E. Freeman, Esquire 666 Northeast 125th Street Suite 238 Miami, Florida 33161 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue In DOAH Case No. 97-5828, the issue is whether the Respondent committed the violations alleged in the Amended Administrative Complaint dated March 24, 1998, and, if so, the penalty which should be imposed. In DOAH Case No. 98-2387, the issue is whether the Respondent committed the violations alleged in the Notice of Specific Charges dated July 30, 1998, and, if so, whether he should be dismissed from employment with the Miami-Dade County School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida teachers' certificates for violations of Section 231.28, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Sections 231.261(7)(b) and 231.28(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.28(1). Richard V. Powell holds Florida Educator's Certificate No. 585010, which covers the subjects of journalism and English- as-a-Second-Language ("ESOL"). His teacher's certificate has an expiration date of June 30, 1999. Mr. Powell was first employed as a teacher with the Miami-Dade County public school system in August 1985. From 1989 through August 1996, Mr. Powell was assigned to Jose Marti Middle School as an ESOL teacher; in August 1996, he was assigned to John F. Kennedy Middle School ("JFK Middle School") as an ESOL teacher; in August 1997, he was given a new assignment as the facilitator of JFK Middle School's School Center for Special Instruction. On November 26, 1997, Mr. Powell was temporarily assigned to the Region II office. At all times material to this proceeding, Mr. Powell was employed by the School Board under a professional service contract. November 1995 incident On the evening of November 19, 1995, at around 10:00 or 10:30 p.m., Mr. Powell was driving his Ford Bronco on Pembroke Road in Broward County, Florida. Mr. Powell's fourteen-year-old son was sitting in the front passenger seat, and he and his father began arguing about his school behavior and progress and about his failure to do his chores around the house. Mr. Powell became angry and punched his son in the mouth with his fist and then pulled the Bronco off the street, into a vacant lot. Mr. Powell got out of the Bronco, walked around the back of the vehicle to the door on the passenger's side, opened the door, and pulled his son out of the vehicle. After the child was outside the vehicle, Mr. Powell punched his son once in the face and, when the child fell to the ground, Mr. Powell kicked him at least once in the ribs. 8/ The child broke away and ran to a convenience store about twenty-five yards from the vacant lot, where a witness to the incident had already called the police. When he arrived at the convenience store, the child was sobbing and holding his side; blood was pouring from his lip. 9/ After the altercation with his son, Mr. Powell was not feeling well and, believing that his son had run the short distance to his home, Mr. Powell drove home. He waited a few minutes for his son and then walked from his home to Pembroke Road. He saw his son, a police car, and an ambulance at the convenience store, and he walked up to the police officers and identified himself as the child's father. Mr. Powell's son was taken to the hospital and treated and released with a split lip and a bruise in the area of his ribs. Mr. Powell was taken to the Pembroke Pines, Florida, police station. Mr. Powell is a diabetic, and, while he was at the police station, he asked to be examined by a doctor because he did not feel well. He was taken to the hospital, where he remained for about an hour. After his release from the hospital, Mr. Powell was arrested and charged with child abuse. On July 29, 1996, after a bench trial on child abuse charges, the court found Mr. Powell guilty but withheld adjudication, sentenced him to six months' probation, and required him to complete a parent counseling course. 10/ Mr. Powell successfully completed the course in December 1996 and was released early from probation on January 8, 1997. In August 1996, Mr. Powell was transferred from Jose Marti Middle School to JFK Middle School, where Raymond Fontana was principal. In a letter dated August 1, 1996, Seth A. Levine, an assistant state attorney in Broward County, Florida, notified the superintendent of the Miami-Dade County public school system that Mr. Powell had been tried on the charge of child abuse, and he advised the superintendent of the resolution of the case. The letter was forwarded to James E. Monroe, who was at the time an Executive Director in the School Board's Office of Professional Standards, who reviewed the letter and transmitted the information contained therein to Mr. Fontana at JFK Middle School and to the state Department of Education Educational Practices Services. Mr. Monroe was not aware of the November 1995 incident involving Mr. Powell and his son until on or about August 14, 1996, when he received the copy of Mr. Levine's letter. In a letter dated October 10, 1996, the Education Practices Services notified Mr. Powell that it had received a complaint against him related to the charges of child abuse, and an investigation was begun which led to the filing of the original Administrative Complaint dated January 21, 1997. The disciplinary action taken against Mr. Powell by the School Board with respect to the child abuse charges consisted of a Site Disposition in the case, which the School Board referred to as Case No. A-17734. In a memorandum to Mr. Powell dated October 15, 1996, Mr. Fontana summarized the substance of a conference which was held on October 15, 1996, with Mr. Powell, Mr. Fontana, and William McCard, an assistant principal at JFK Middle School, in attendance. In the memorandum, Mr. Fontana indicated that "[t]he purpose of the conference was to establish a final disposition through administrative review of the above indicated case." Mr. Fontana further stated: Upon review of all the records and talking with you, it is determined that the incident in question happened in Broward County, no adjudication of guilt was established, and legally the case was closed. However, you have agreed to counseling in order to forestall any future problems. The case in question dealt with your own family member and alleged child abuse. We reviewed my expectations of you in regards to your teaching position at John F. Kennedy Middle School and your professional treatment of all your students. We reviewed the State Code of Ethics guidelines dealing with the same subject. Thus, I am directing you to follow the established State Code of Ethics Rules, School Board Policy, and Site Rules dealing with conduct becoming a teacher and subsequent teaching relationships with students. I feel that this will adequately bring closure to this incident and that in the future your teaching behavior will always be of the highest professional standard. In his annual evaluation for the 1995-1996 school year, Mr. Powell was rated "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. Likewise, in his annual evaluation for the 1996-1997 school year, Mr. Powell was assessed "acceptable" in both classroom performance and in professional responsibility, and he was recommended for continued employment. This annual evaluation followed a Teacher Assessment and Development System Post-Observation Report completed on April 16, 1997, by Mr. McCard, in which he found that Mr. Powell's performance satisfied every indicator subject to evaluation. 11/ November 1997 incident On November 25, 1997, Mr. Powell was the teacher in charge of the School Center for Special Instruction ("SCSI") at JFK Middle School. The SCSI is an indoor suspension program for children who are being disciplined for behavior violations; SCSI is an alternative to sending these children home for the duration of their suspension. The SCSI class was held in the school cafeteria at JFK Middle School from 9:00 a.m. until the end of the school day at 3:40 p.m. Two sets of double doors provide access to the cafeteria. One set, those on the right, were locked from the outside and not normally used; the students entered and left the cafeteria by the set of doors on the left of the building. At approximately 3:20 p.m. on November 25, 1997, the SCSI students were returning to the cafeteria after cleaning up an area outside the cafeteria. Mr. Powell was outside supervising the students as they returned to the cafeteria, and there was no adult supervising the students who had already moved inside the cafeteria. During this hiatus, a seventh-grade student named M. M. got into an altercation with several other boys in the class whom he suspected of taking his book bag. The boys began pushing and shoving M. M. and encouraging him to fight with one specific boy. M. M. refused to fight; he became angry and upset and left the cafeteria by way of the set of double doors on the right side of the cafeteria. Because he was angry and upset, M. M. pushed the door open quite forcefully. Mr. Powell had had surgery on his right foot the previous day; his foot was in a cast, and he used a cane to assist him in walking. At the time M. M. pushed open the cafeteria door, Mr. Powell was standing outside directly in the path of the door as it opened. M. M. could not see Mr. Powell because there were no windows in the door. As it swung open, the door hit Mr. Powell's injured foot, and Mr. Powell raised his cane and struck M. M. on his right arm. 12/ M. M. ran back inside the cafeteria, in tears. He rushed through the cafeteria and exited through the set of doors on the left side of the cafeteria. He went directly to the office of Sandra Clarke, one of the guidance counselors at JFK Middle School. When he arrived at her office, M. M. was agitated and crying, and he told Ms. Clarke that Mr. Powell had hit him on the arm with his cane. M. M. showed Ms. Clarke the mark on his arm, which was located on the outside of his right arm, midway between his shoulder and his elbow. Ms. Clarke observed that M. M. had a red welt on his arm, and she took him to the office of Patrick Snay, who was at that time the principal of JFK Middle School. Mr. Snay called in Assistant Principal McCard and told him about the allegations M. M. had made against Mr. Powell. Mr. Snay directed Mr. McCard to call the school police and to take statements from the students in the class who witnessed the incident. Mr. McCard took a statement from M. M. and observed the red mark on his arm. A school security guard went into the SCSI class right before school ended for the day and asked that any students who had seen the incident involving Mr. Powell and M. M. stay after school and write a statement telling what they had seen. Several students remained and prepared statements. 13/ Mr. Powell reported for school the next morning but was told to report to the School Board's Region 2 office. Mr. Powell worked at that office for one day, and then, beginning on the Monday after Thanksgiving, he was assigned to work at Highland Oaks Middle School. He worked at that school until he was suspended by the School Board on May 13, 1998. His duties at Highland Oaks Middle School included taking care of disabled students, accompanying them to their classes and to lunch, sitting with them, and taking notes for them, all under the direct supervision of the school's media specialist. At the direction of James Monroe, who was at the time an Executive Director in the School Board's Office of Professional Practices, a personnel investigation was initiated on December 6, 1997, with respect to M. M.'s allegations against Mr. Powell. A preliminary personnel investigation report was submitted on February 13, 1998, in which the investigator concluded that the charge against Mr. Powell was substantiated. A Conference-for-the-Record was held on March 25, 1998, attended by Mr. Snay; John F. Gilbert, Director of Region 2; Ms. Falco, Mr. Powell's union representative; Dr. Monroe; and Mr. Powell. Several issues were discussed during the conference: Mr. Powell was allowed to review a copy of the School Board's investigative report regarding the incident involving M. M., and he was allowed to comment on the report. Mr. Powell denied having hit M. M. and advised the School Board personnel that he knew of an eye witness to the incident who would support his denial. Mr. Powell was also allowed to review a copy of the October 15, 1996, memo to Mr. Powell from Principal Fontana, discussed in paragraph 16, supra, memorializing the discipline imposed with respect to the charges that Mr. Powell had committed child abuse on his son. Dr. Monroe advised Mr. Powell that he had failed to comply with the directives included in that disposition. /14 During the Conference-for-the-Record, Mr. Powell was told that a recommendation would be made to the School Board that his professional services contract not be renewed and that a decision would be made whether to take disciplinary measures against him, which could include suspension or dismissal. In a letter dated April 29, 1998, the Superintendent of Schools recommended to the School Board that Mr. Powell be suspended from his position as a teacher and that dismissal proceedings be initiated against him. The School Board accepted this recommendation on May 13, 1998. On October 29, 1998, Mr. Powell was tried by a jury on the criminal charge of battery arising out of his striking M. M. A number of students testified at the trial, and Mr. Powell was found "not guilty" of the charge. On September 5, 1997, Mr. Powell was honored by the Florida House of Representatives with a Certificate of Appreciation for "his contributions and accomplishments in the National Association of Black Scuba Divers." As a member of that association, Mr. Powell was recognized and commended for his work with the sunken slave ship Henrietta Marie and for his lectures and seminars on the history of this ship. On May 28, 1998, an article about the Certificate of Appreciation appeared in The Miami Times, together with a picture of Mr. Powell and Representative Larcenia Bullard. Nowhere in the certificate or in the news article is Mr. Powell identified as a teacher or former teacher in the Miami-Dade County public schools. Mr. Powell is mentioned and quoted in an article which was published in the South Florida edition of the Sunday Sun Sentinel newspaper on February 1, 1998. The article discussed the celebration of Black History Month by the descendants of slaves who are living in South Florida. Mr. Powell is identified in the article as the person who led members of the National Association of Black Scuba Divers in a dive to the site of the Henrietta Marie. Mr. Powell also gave a lecture on the Henrietta Marie in February 1997 at the Miami-Dade County Community College, as part of a special African-American history course. Summary The evidence presented herein clearly and convincingly establishes that Mr. Powell struck and kicked his son on November 19, 1995, and that he struck M. M. with his cane on November 25, 1997, while carrying out his duties as an SCSI teacher. Mr. Powell's testimony that he did not strike either his son or M. M. is rejected as not persuasive, as is the testimony of those witnesses who testified that Mr. Powell did not strike M. M. The evidence presented is sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude when he dragged his fourteen-year-old son from the passenger seat of his Ford Bronco, struck his son in the face twice, and kicked his son in the ribs at least once, causing him to suffer a split lip and bruised ribs. This act of violence is not only inconsistent with the public conscience, it is an act of serious misconduct which was in flagrant disregard of society's condemnation of violence against children. The seriousness of Mr. Powell's act is only exacerbated by the fact that he acted in anger. Although the evidence establishes that Mr. Powell committed an act of gross immorality, the only evidence offered regarding any notoriety arising from the November 1995 incident and from Mr. Powell's subsequent trial on the charges of child abuse is the testimony of Dr. Monroe. Dr. Monroe's testimony that there "was considerable notoriety via the print and the electronic media of Mr. Powell's action which resulted in his arrest" was not based on his personal knowledge but was based on information he received in August 1996 from an assistant state's attorney in Broward County. Dr. Monroe's testimony is not only hearsay unsupported by any other evidence in the record, it is not credible to prove that Mr. Powell's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Powell's service in the community. Moreover, Mr. Powell presented evidence that, subsequent to the November 1995 incident, he was publicly recognized for his contributions to the community through his work with the slave ship Henrietta Marie. The evidence presented is also sufficient to establish that Mr. Powell committed an act of gross immorality and of moral turpitude with respect to the November 1997 incident involving M. M. When Mr. Powell lashed out at this student and struck him with a cane, albeit after the student pushed a door into his injured foot, he demonstrated a flagrant disregard of public morals and of society's condemnation of violence against children, and he committed an act that betrayed the special trust placed in teachers. However, there was no persuasive evidence presented to establish that Mr. Powell's conduct involving M. M. was sufficiently notorious to expose either Mr. Powell or the education profession to public disgrace or disrespect or that Mr. Powell's service in the community was impaired with respect to the November 1997 incident. The most the evidence demonstrates is that the school received inquiries from parents about the need for their children to give statements regarding the incident, but these inquiries do not rise to the level of notoriety. Furthermore, it would be inappropriate to infer notoriety and public disgrace and disrespect from the fact that Mr. Powell was tried and found not guilty of the charge of battery on M. M. The evidence presented is sufficient to establish that, with respect to the November 1997 incident in which Mr. Powell struck M. M. with his cane, Mr. Powell violated several provisions of the Code of Ethics of the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida because he did not exercise professional judgment; because he inflicted physical injury on M. M. rather than protecting him from such injury; and because he exposed M. M. to unnecessary embarrassment by striking him and causing him to cry in front of his fellow students in the SCSI class. There was, however, no persuasive direct evidence presented to establish that Mr. Powell's effectiveness as a teacher and an employee of the School Board was diminished as a result of the November 1997 incident. This direct evidence consisted solely of the opinion testimony of Dr. Monroe, which was conclusory and was based exclusively on information he obtained from Mr. Powell's records and from discussions with school administrative personnel charged with monitoring Mr. Powell's conduct and teaching performance. No parents or students or members of the community testified that Mr. Powell's effectiveness as a teacher and as an employee of the School Board was diminished as a result of this incident. Under the circumstances of this case, however, it can be inferred from the record as a whole that Mr. Powell's effectiveness as a School Board employee and as a teacher was seriously diminished as a result of the November 1997 incident. Mr. Powell stuck a student with a cane during school hours, and the incident was witnessed by a number of students, who were asked to testify both in this proceeding and in Mr. Powell's criminal trial. In addition, the allegations against Mr. Powell with respect to the November 1997 incident were of such a serious nature that it was necessary to relieve Mr. Powell of his teaching responsibilities and to transfer him from JFK Middle School to the Region 2 administrative offices and, from there, to another middle school in which his contact with students was closely supervised. Finally, the evidence presented is sufficient to establish that, with respect to the November 1997 incident in which he struck M. M. with his cane, Mr. Powell did not conduct himself in a manner which reflected credit on himself or on the school system, nor did his conduct conform to the highest professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that In DOAH Case NO. 97-5828, the Education Practices Commission enter a final order finding Richard V. Powell guilty of violating Section 231.28(1)(c) and (i), Florida Statutes, and revoking his teacher's certificate for a period of two years, followed by three years' probation, subject to reasonable conditions to be determined by the Commission; and In DOAH Case No. 98-2387, the School Board of Miami-Dade County, Florida, enter a final order finding Richard V. Powell guilty of misconduct in office pursuant to Section 231.36(1)(a) and (6)(a), Florida Statutes, and of violating School Board Rules 6Gx13-4A-1.21 and 6Gx13-4-1.08 and 4-1.09; sustaining his suspension; and dismissing him from employment as a teacher with the Miami-Dade County Public Schools. DONE AND ENTERED this 11th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 11th day of October, 1999.
Findings Of Fact The School Board is charged with the duty to operate, control and supervise free public schools within the School District of Duval County, Florida, pursuant to article IX, section 4(b) of the Florida Constitution, and section 1012.22, Florida Statutes (2018).1/ At all material times, Respondent has been employed as a classroom teacher with the School Board under a professional services contract. During the 2017-2018 school year, Respondent was assigned to teach first grade at San Mateo in Jacksonville, Florida. The Step III Notice issued by the School Board to Respondent on April 20, 2018, constitutes the administrative charging document in this proceeding. The incident giving rise to this proceeding occurred on Wednesday, February 14, 2018. On February 14, 2018, students were sitting on the carpet in Respondent's classroom ready for a slideshow lesson that Respondent intended to teach. C.K., a 7-year-old student in Respondent's classroom at the time, started off in his chair, but then got up and started crawling under tables in an attempt to collect beads that had been left on the floor during a previous arts and craft activity. In response, Respondent gave C.K. a choice to either sit in his seat or sit at the back table. C.K. did neither, but rather continued to crawl around on the floor. C.K. then made his way to the back table and began making paper airplanes and throwing them. Respondent asked C.K. to stop that behavior and told him that if he continued he would have to leave the room and she would have to call his mother. At that point, C.K. broke down and became very upset, which was not his normal behavior. Respondent tried to talk to C.K. and calm him down. She also called guidance on the intercom for assistance with C.K., but there was no answer. While Respondent was attempting to contact guidance, C.K. began running around the room and yelling. Around this time, Annette Smith, the paraprofessional assigned to Respondent's classroom, entered the room and tried to talk to C.K. Next, both Respondent and Ms. Smith tried to persuade C.K. to go outside the classroom, but he began to yell, scream, and kick. He grabbed a desk and would not let go. As C.K. was holding onto the desk, Respondent called the front office for assistance. C.K.'s grip on the desk caused the desk to begin to tip over. Ms. Smith reacted by holding the desk to prevent it from falling. Both Respondent and Ms. Smith were able to get C.K. to release the desk; he was kicking and took hold of another desk that had a student sitting in it. As that desk tipped, Respondent and Ms. Smith held onto it to prevent it from falling. Ms. Smith was able to get C.K. to release the desk. Respondent opened the classroom door, and Ms. Smith nudged C.K. out of the classroom and into the hallway. Once in the hall, Respondent tried to calm C.K. down in private, one-on-one. Shortly thereafter, the school nurse, Mindie Rose, came out of another classroom and offered to take C.K. up to the office. Nurse Rose never observed Respondent yelling at C.K. and, in her testimony, described the scene as one in which Respondent was trying to coax C.K. back into the room. While Nurse Rose was standing there, Assistant Principal Poag walked up. Ms. Poag's testimony regarding the scene contrasts with Nurse Rose's recollections. According to Ms. Poag, she heard Respondent yelling at C.K. Ms. Poag testified that she saw red marks on C.K.’s wrists and forearms and scratch marks on his hands. Later, when C.K. was brought to the office, Principal Wells noticed red marks on C.K.’s upper arms and his upper forearms. Nurse Rose saw C.K. rubbing his wrists and forearms and noticed red marks in the area he was rubbing. Nurse Rose was unable to determine whether the red marks came from C.K.'s rubbing or from something that happened in the classroom. Nurse Rose described the marks as “nothing deep,” “kind of pink,” and “on the surface.” On her own, without direction from anyone else, Nurse Rose got some ice for C.K.'s arms. At the final hearing, C.K. provided persuasive testimony by telephone regarding the incident. C.K. testified that he was being bad on February 14, 2018. He admitted grabbing tables, and that Ms. Smith pulled his hands off, but that he then put his hands back onto a desk. He also confirmed that he was yelling that day in the classroom, but only “half loud.” According to C.K., during the incident, Respondent was not holding his feet or yelling at him, she gave him a hug, and was talking to him about being calm. C.K.’s mother testified that Respondent had also taught C.K. the previous 2016-2017 school year, and that when C.K. was retained, she requested that C.K. be assigned to Respondent’s class for the 2017-2018 school year. C.K.'s mother testified that she had seen improvement in C.K.'s grades and attitude when being taught by Respondent. According to C.K.'s mother, C.K. never got into trouble at school until December 2017, around the same time that he lost his aunt and there was a custody battle going on with his mother and step-father. When C.K. started acting up in school, Respondent kept C.K.'s mother informed. In the two weeks prior to the incident, Respondent wrote two referrals on C.K. On February 1, 2018, she gave C.K. a written referral because C.K. was insisting on having his toy car, hitting the table, and yelling at the teacher. Respondent wrote the second referral on February 7, 2018, because C.K. was hitting classmates and throwing books and pencils across the room. For the behaviors leading to the second referral, a guidance counselor took C.K. out of the room. When he returned to the room, C.K. started yelling at others, ignored redirection, and told the teacher, “No, I won’t do it.” When C.K.'s mother found out that, during the February 14, 2018, School Board meeting, the School Board intended on disciplining Respondent for the incident, she wrote a statement on Respondent's behalf, pleading against the imposition of discipline. Assistant Principal Thomas testified that student behaviors, such as yanking on a desk and almost pulling it over and kicking and hitting a teacher, would be considered aggressive behavior. Principal Wells testified that it is appropriate to remove a child from the classroom when they are hurting themselves or others, if there is a danger, or if they are disrupting teaching and learning. Their testimonies are credited. In addition to her teaching job, Respondent has a second job at Publix Supermarkets. One of Respondent's co- workers at Publix, Megan Foster, told Respondent that she was taking an on-line class to become a teacher and the class required her to observe a school lesson. Ms. Foster had volunteered at San Mateo before, and Respondent believed that Principal Wells was aware of that. Therefore, Respondent invited Ms. Foster to observe, not teach or intern, in Respondent's first-grade class. Volunteers are allowed in classrooms at San Mateo. Volunteers are not necessarily interns. Ms. Foster was in Respondent's classroom on February 14, 2018, as a volunteer and observer, not as an intern. That same day, shortly after the incident with C.K., Principal Wells observed Ms. Foster for a few seconds. According to Principal Wells, Ms. Foster was speaking to Respondent's classroom children and standing at the projector. According to Principal Wells, Ms. Foster was “an unknown person.” As explained by Sonita Young, a onetime visitor can come to San Mateo without any prior approval as long as they are under supervision. At the time that Ms. Foster was observed in Respondent's classroom, Ms. Smith, the classroom paraprofessional, was in the classroom, and Respondent was just outside in the hall.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Duval County School Board: Dismissing the allegations against Respondent set forth in the Step III Notice and rescinding any discipline imposed thereby; and Reimbursing Respondent for any pay or benefits that she did not receive as a result of the School Board’s actions in this case, plus interest from the date that any such pay or benefit was withheld, as appropriate under applicable law. DONE AND ENTERED this 27th day of September, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 27th day of September, 2018.
The Issue Whether just cause exists for Petitioner to suspend Respondent from his teaching position, without pay, for 15 days, and to terminate his employment as a teacher.
Findings Of Fact The Parties Petitioner, Palm Beach County School Board, is charged with the duty to operate, control, and supervise free public schools within the School District of Palm Beach County ("District"), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes. Respondent has been employed by the District as a teacher since 2005. His last teaching assignment was as an eighth grade history teacher at Howell L. Watkins Middle School ("Watkins"), where he taught for approximately 12 years. Administrative Complaint Charges The Administrative Complaint alleges that on or about January 19, 2017, Respondent engaged in the following conduct with respect to a student, K.B.: "10. . . . a. [p]ush[ing] her into the dry board; b. [g]rabbing the student victim’s backpack causing her to fall; c. [p]ulling the victim’s arms and dragging her by one arm and one leg; and d. [d]ragging the student victim by the ankle and wrist." As a result of this alleged conduct, Petitioner has charged Respondent, in the Administrative Complaint, with violating the following statutes, rules, and School Board policies: sections 1008.24(1)(c), (1)(f), and (1)(g), 1012.22(1)(f), and 1012.27(5), Florida Statutes; Florida Administrative Code Rules 6A-5.056(2) and 6A-10.081(2)(a)(1), (2)(a)(5), and (2)(c)(1); and School Board Policies 0.01(2)(3) and (2)(4); 3.02(4)(a), (4)(d), and (4)(f); 3.02(5)(a)(ii), (5)(a)(viii), (5)(c)(vii) and (5)(i); 1.013(1); 1.1013; and 3.27; and article II, section M of the County Teachers' Association Collective Bargaining Agreement ("CBA"). The Administrative Complaint does not charge Respondent with having committed gross insubordination in violation of rule 6A-5.056(4). Evidence Adduced at Hearing The incident giving rise to this proceeding occurred on January 19, 2017, at Watkins, in Respondent's classroom and in the hallway immediately outside of Respondent's classroom. On that day, K.B., a student in Respondent's class, put her head down on her desk and refused to participate in the class's activities, despite being told repeatedly by Respondent to lift her head off of her desk and to participate in class activities. Frustrated with K.B.'s refusal to obey his repeated directives to lift her head off of her desk and participate in the class, Respondent ordered K.B. to get out of his classroom. The evidence does not clearly and convincingly establish whether, or what type, of physical interaction between Respondent and K.B. may have occurred as she was leaving, but was still inside the classroom.2/ The undisputed evidence establishes that as K.B. was walking toward the door to leave the classroom, she intentionally knocked a book off of a desk, causing it to fall to the floor. Respondent ordered K.B. to pick up the book, but she did not do so and exited the classroom. The evidence clearly and convincingly establishes that as K.B. opened the door and attempted to exit the classroom, Respondent detained her by grabbing her backpack. K.B. pushed forward in an attempt to resist being detained by Respondent, and as a result, fell to the floor in the hallway immediately adjacent to the open classroom door.3/ The evidence clearly and convincingly establishes that Respondent placed his hands on K.B.'s wrist and ankle as she was lying on the floor and dragged her back into the classroom.4/ Once K.B. and Respondent were back inside the classroom, Respondent ordered K.B. to pick up the book that she had pushed to the floor and to place it back on the desk. She complied, but then again intentionally pushed the book off of the desk onto the floor and again exited the classroom. The evidence clearly and convincingly establishes that as K.B. ran out of the open classroom door, Respondent again grabbed K.B. by her backpack. K.B. pushed forward to resist being physically detained by Respondent, and, as a result, again fell to the floor of the hallway. Respondent placed his hands on K.B.'s wrist and ankle as she was lying on the floor and again dragged her back into the classroom.5/ As K.B. and Respondent exited the classroom the second time, teacher Angela Hammond, whose classroom was immediately next door to Respondent's and who said she heard a "commotion," came out of her classroom into the hall. Hammond observed Respondent dragging K.B., who was lying on the floor, back into his classroom. Hammond entered Respondent's classroom and observed K.B. pick up a book that was on the floor, place it on a desk, and then slide it off of the desk onto the floor. At that point, Hammond took K.B. into her (Hammond's) classroom, and talked to K.B. in an effort to calm her down. At some point, Respondent also entered Hammond's classroom to talk to K.B. in an effort to determine if she was alright and to calm her down. The clear and convincing evidence, consisting of K.B.'s own testimony, establishes that she was not physically injured as a result of any aspect of the incident, including having been pulled by her ankle and wrist by Respondent. K.B. testified that she was extremely angry with Respondent as a result of the incident. The evidence establishes that before the incident, Respondent and K.B. enjoyed a mentor-mentee relationship. K.B. would talk to Respondent about her personal and school- related problems. Respondent would advise K.B. regarding engaging in more appropriate behavior at school, and would encourage her academic performance. K.B. testified that Respondent was one of her favorite teachers and that Respondent's class was the only one she had enjoyed in the 2016-2017 school year. To that point, K.B. wrote a letter to Respondent, telling him that she enjoyed his class, that he was a good teacher, and that she appreciated his help and encouragement. When asked whether the January 19, 2017, incident had changed her opinion of Respondent, she testified: "[n]ot really, because we both were in the wrong." Donald Hoffman, the principal at Watkins during the 2016-2017 school year, testified that the proper means for dealing with students who present behavioral problems during class is to use the in-classroom buzzer, which is mounted on the classroom wall, to call for assistance from school administration staff. Hoffman testified that all teachers at Watkins are apprised of this protocol. Respondent acknowledged that he was aware of this protocol, but that he did not use the buzzer to call for assistance in dealing with K.B.'s defiant behavior in the classroom or as she left the classroom. He acknowledged that he could have handled the situation in a more appropriate manner than he did in physically detaining K.B. Respondent testified, credibly, that he physically detained K.B. to prevent her from getting into trouble with the school's administration, and possibly being returned to the alternative school from which she had transferred, for having left his classroom during the class period. The Watkins Faculty & Staff Handbook ("Faculty Handbook") for fiscal year 2017 ("FY '17"), pages 33 and 34, contains a policy, regarding student detention. This policy states, in pertinent part: "The Principal, Assistant Principal, teacher, media specialist, or others engaged in administrative or instructional capacity in public schools, shall be authorized to temporarily detain and question a student under circumstances which reasonably indicate that such a student has committed, is committing, or is about to commit a violation of law." There is no persuasive evidence establishing that K.B. had committed, was committing, or was about to commit a crime. Therefore, the policy on pages 33 and 34 of the Faculty Handbook does not authorize Respondent's physical detention of K.B. Hoffman testified that the administration at Watkins does "not promote physical contact with students in any negative manner," and that, generally, only the administration is permitted to detain students at Watkins. Respondent previously has been disciplined by Petitioner.6/ One prior disciplinary action——consisting of a written reprimand issued on May 23, 2013, in which Respondent was reprimanded for engaging in "horseplay" with a student——is germane to this proceeding because it is an action that falls within the Progressive Discipline process established in the CBA, section 7.7/ Findings of Ultimate Fact The Administrative Complaint charges Respondent with having violated various statutes, State Board of Education rules, and School Board policies. Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). 31. Here, Petitioner has charged Respondent with violating rule 6A-5.056(2), which states: 6A-5.056 Criteria for Suspension and Dismissal. "Just cause" means cause that is legally sufficient. Each of the charges upon which just cause for a dismissal action against specified school personnel may be pursued are set forth in Sections 1012.33 and 1012.335, F.S. In fulfillment of these laws, the basis for each such charge is hereby defined: * * * "Misconduct in Office" means one or more of the following: A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.; A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A- 10.081, F.A.C.; A violation of the adopted school board rules; Behavior that disrupts the student’s learning environment; or Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties. Petitioner also has charged Respondent with violating rule 6A-10.081(2), which states, in pertinent part: Florida educators shall comply with the following disciplinary principles. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law. Obligation to the student requires that the individual: 1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety. * * * 5. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. * * * (c) Obligation to the profession of education requires that the individual: 1. Shall maintain honesty in all professional dealings. Petitioner also has charged Respondent with violating various School Board policies. Specifically, Petitioner has charged Respondent with violating Policy 0.01, Commitment to the Student, Principle I, which states in pertinent part: 2. In fulfilling his obligations to the student, the educator-. . . 3. [s]hall make reasonable effort to protect the student from conditions harmful to learning or to health and safety; 4. [s]hall conduct professional business in such a way that he does not expose the student to unnecessary embarrassment or disparagement. Petitioner also has charged Respondent with violating Policy 1.013, Responsibilities of School District Personnel and Staff, which states: The district administrative staff shall be responsible for the efficient planning and administration of all supporting educational services such as maintenance, transportation, school lunch, personnel, purchasing, federal programs, payroll and other responsibilities as directed by the superintendent. The district administrative staff is also responsible for insuring that the appropriate district policies, state board of education rules, state laws, and federal laws and rules are adhered to. It shall be the responsibility of the personnel employed by the district school board to carry out their assigned duties in accordance with federal laws, rules, state statutes, state board of education rules, school board policy, superintendent's administrative directives and local school and area rules. District administrative staff. District instructional staff. The district level instructional staff shall be responsible for the cooperative development, supervision, and improvement of the district instructional program. The areas include in-service education, program evaluation, development of curriculum materials, educational specifications for school facilities, development of federal programs, accreditations, state program requirements and other responsibilities as directed by the superintendent. Pursuant to § 231.09, Fla. Stat., the primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role. Teachers. It shall be the duty of the teacher to provide instruction, leadership, classroom management and guidance to pupils through democratic experiences that promote growth and development both as individuals and as members of society. Pursuant to § 231.09, F.S., teachers shall perform duties prescribed by school board policies relating, but not limited, to helping students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully; using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board. Petitioner also has charged Respondent with violating the following provisions of Policy 3.02, Code of Ethics: Accountability and Compliance Each employee agrees and pledges: To provide the best example possible; striving to demonstrate excellence, integrity and responsibility in the workplace. * * * d. To treat all students and individuals with respect and to strive to be fair in all matters. * * * f. To take responsibility and be accountable for his or her acts or omissions. Ethical Standards a. Abuse of Students – We are committed to ensuring that employee-student relationships are positive, professional, and non- exploitive. We will not tolerate improper employee-student relationships. Each employee should always maintain a professional relationship with students, both in and outside of the classroom. Unethical conduct includes but is not limited to: * * * ii. Exposing a student to unnecessary embarrassment or disparagement. * * * viii. Engaging in misconduct which affects the health, safety, and welfare of a student(s). * * * c. Misrepresentation or Falsification – We are committed to candor in our work relationships, providing other Board employees including supervisors, senior staff and Board members with accurate, reliable and timely information. Employees should exemplify honesty and integrity in the performance of their official duties for the School District. Unethical conduct includes but is not limited to: i. Falsifying, misrepresenting, or omitting information submitted in the course of an official inquiry/investigation[.] Professional Conduct – We are committed to ensuring that our power and authority are used in an appropriate, positive manner that enhances the public interest and trust. Employees should demonstrate conduct that follows generally recognized professional standards. Unethical conduct is any conduct that impairs the ability to function professionally in his or her employment position or conduct that is detrimental to the health, welfare or discipline of students or the workplace. Unethical conduct includes, but is not limited to, the following: Failing to maintain any necessary certification or licensure required in the performance of job duties for the School District. Shall not knowingly and willfully make false statements about a colleague. Failing to report the alleged misconduct of a fellow employee, to cooperate fully during any investigation or to complete an investigation relative to allegations of misconduct of a fellow employee, which affects the health, safety or welfare of a student. Entering into a confidentiality agreement regarding terminated or dismissed instructional employees and school administrators, or personnel or administrators who are dismissed or resign in lieu of termination, based in whole or in part on misconduct that affects the health, safety or welfare of a student. Providing employment references or discussing the instructional personnel’s or school administrator’s performance with prospective employers in another educational setting, without disclosing the personnel’s or administrator’s misconduct. Petitioner also has charged Respondent with violating Policy 3.27, Suspension and Dismissal of Employees,8/ which provides: The purpose of this section is to promulgate rules regarding the suspension and dismissal of employees. These rules shall be read in conjunction with the procedures established for administrative hearings as set forth in Chapter 4, except, however, in the event it is determined that a conflict exists between these rules and those of Chapter 4, these rules will be controlling. Upon a finding of probable cause by the Superintendent sufficient to warrant a recommendation to the School Board for suspension without pay and dismissal, the Superintendent shall communicate in writing to the employee: A concise statement of the Superintendent's recommendation(s) to the School Board affecting the employee's employment status. A statement of the date, time, and place where the School Board shall meet to consider the Superintendent's actions and recommendation(s). A statement of the legal authority for the Superintendent's actions and recommendation(s). A short and plain statement of the charges made by the Superintendent against the employee. A statement of the time limit for requesting a hearing before the School Board. All employees recommended for suspension without pay and dismissal shall have the right to request a hearing provided such a request is made in writing to the School Board within 15 days of the receipt of the Superintendent's written notice. Any person who receives written notice from the Superintendent of a recommendation(s) for suspension without pay and dismissal and who fails to request a hearing within 15 days, shall have waived the right to request a hearing on such matters, and the allegations and charges as contained in the notice shall be deemed by the School Board to be true for the purpose of entering a final order on the Superintendent's recommendation(s). In the event a request for a hearing is timely made and received by the Office of General Counsel, by either an instructional employee with a continuing contract or by a noninstructional employee during the term of an annual contract, the procedure for conducting a hearing, unless otherwise determined by the School Board, is as follows: The Superintendent will file a petition for dismissal with the Division of Administrative Hearings (DOAH). This petition shall contain: The name and address of the School Board and the file or identification number, if known; The name and address of the employee, and an explanation of how the employee's substantial interest will be affected by the agency determination; A statement of when and how the employee received notice of agency decision or intent to render a decision; A statement of all disputed issues of material fact. If there are none, the petition must so indicate; A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the Superintendent to relief; A demand for relief to which the Superintendent deems himself entitled; and Other information which the Superintendent contends is material. The DOAH will assign a Hearing Officer to conduct the hearing. The employee and the employee's representative will be informed of the time and place for the hearing by the DOAH. Whenever possible, the hearing shall be held in the place most convenient to all parties as determined by the Hearing Officer. The hearing shall be conducted in accordance with Chapter 120, Florida Statutes. Within thirty (30) days after the hearing or receipt of the hearing transcript, whichever is later, the Hearing Officer shall file a recommended order to the School Board including a caption, time and place of hearing, statement of the issues, findings of fact and conclusions of law, and recommendations for final agency action. The School Board, within ninety (90) days of receipt of the Hearing Officer's recommended order, shall issue the final order. This shall be considered at a regularly scheduled School Board meeting. The School Board may adopt the Hearing Officer's recommended order as its Final Order. The School Board in its final order may reject or modify the conclusions of law in the recommended order but may not reject or modify the findings of fact unless the School Board first determines from a review of the complete record that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The School Board may reduce or increase the recommended penalty in a recommended order, but may do so only with a review of the complete record. The hearing must be conducted by the School Board within forty-five (45) days of the request for hearing. The hearing shall be conducted in accordance with Section 120.57, Florida Statutes. Following the close of a hearing before the School Board, the parties may submit proposed findings of fact, conclusions of law and recommended order, or legal briefs on the issues within a time designated by the School Board. If an employee does not specifically designate a hearing preference, the School Board shall follow procedures as listed in Section (5). If a request for a hearing is timely made and received by the Office of General Counsel by an instructional employee during the term of an annual contract or by an instructional employee with a professional service contract, either employee may elect to have a hearing before the DOAH or request that a hearing be held before the School Board. If the employee elects a hearing before the School Board, the following procedures shall apply: A majority vote of the membership of the School Board shall be required to sustain the Superintendent's recommendation. A final order shall be entered within ninety (90) days after the last date of the hearing or receipt of the hearing transcript, whichever is later. The determination of the School Board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. Petitioner also cites, as a basis for its proposed discipline of Respondent, article II, section M, of the CBA, Progressive Discipline, which states: Without the consent of the employee and the Association, 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 this 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 and concerning the appropriateness of the proposed 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 with written notation, reprimanded in writing, 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, a District employee, and/or a child/children or the actions/inactions of the employee clearly constitute flagrant or purposeful violations of reasonable school rules and regulations, 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 maintained at the District headquarters, but will be placed in a file at the school/department and shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which led to the notation. The written notification shall be maintained at the school site/department pursuant to the District’s Records Retention Schedule. 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 Without Pay - A suspension without 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 without pay shall be placed in writing, dated and signed by the giver and the 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) 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 includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Based on the foregoing findings of fact, it is determined, as a matter of ultimate fact, that by dragging K.B. by her wrist and ankle back into the classroom, Respondent violated rules 6A-5.056(2)(b), 6A-10.081(2)(a)1., and School Board Policy 0.01, section 3. Specifically, Respondent's actions did not constitute a reasonable effort on his part to protect K.B. from conditions potentially harmful to her health or safety. There was at least a possibility that K.B. could have been injured by being dragged across the floor by her wrist and ankle, and Respondent should have foreseen and understood that possibility. Additionally, it is determined that Respondent violated School Board Policy 3.02, section 4.d. By dragging K.B. across the floor by her ankle and wrist, Respondent did not treat K.B. with respect, as is required by that policy. Although Respondent detained K.B. in order to prevent her from getting into trouble and potentially transferred out of Watkins to an alternative school, he could have avoided having physical contact with K.B. by following the established protocol to use the classroom buzzer to summon school administration. As discussed above, Petitioner has taken one prior pertinent disciplinary action against Respondent, in the form of a written reprimand. As discussed above, section M of the CBA establishes Petitioner's progressive discipline policy. Section 7.d. of this policy states that except in cases which clearly constitute a real and immediate danger to the District, a District employee, or a child, or the actions or inactions of the employee clearly constitute flagrant or purposeful violations of reasonable school rules and regulations, progressive discipline is administered in a sequential manner, starting with a verbal reprimand with written notation; progressing to a written reprimand; then progressing to suspension without pay; and concluding with dismissal. Here, the clear and convincing evidence supports following the sequential penalty imposition established in section 7. of the progressive discipline policy. Specifically, the clear and convincing evidence supports suspending Respondent without pay, for the duration of his suspension, starting on the day on which he was suspended up to the date of entry of the final order in this proceeding. This penalty takes into account the serious nature of Respondent's conduct in dragging K.B. across the floor, but does not result in termination of a teacher who, by all accounts, is a very good teacher who cares deeply about his students, including K.B., and who puts forth extra effort to mentor to students in need of such support.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order finding just cause and suspending Respondent from his teaching position, without pay, commencing on the date on which he was suspended from his employment, and ending on the date on which a final order is entered in this proceeding. DONE AND ENTERED this 13th day of November, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 13th day of November, 2018.
The Issue Whether just cause exists to terminate Respondent's employment as a teacher with the Palm Beach County School District for the reasons alleged in the Petition ("Complaint").
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida. At all times pertinent to this case, Respondent was employed as a math teacher at Palm Springs Middle School, a public school in Palm Beach County, Florida. Stipulated Facts The Collective Bargaining Agreement between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association was in effect at all times pertinent to this proceeding. Pursuant to the parties' Joint Pre-Hearing Stipulation, the facts contained in paragraphs 5 through 10 below are admitted and required no proof at final hearing. On January 13, 2013, Respondent was arrested for the following criminal charges: (1) hit and run—leaving the scene of a crash involving damage to property; (2) resisting an officer without violence; (3) DUI-unlawful blood alcohol—refusal to submit to DUI test; (4) knowingly driving with a suspended license; and (5) bribery of a public servant (two counts). On July 22, 2013, Respondent was adjudicated guilty of the following charges: (1) driving under the influence causing injury to person or property in violation of section 316.193, Florida Statutes; (2) leaving the scene of a crash involving damage in violation of section 316.061, Florida Statutes; and (3) resisting an officer without violence in violation of section 843.02, Florida Statutes. Respondent's arrest resulted in media attention, with headlines including: (1) "Mary Maloney: Palm Springs teacher offers police sexual favor after DUI arrest, police say"; (2) "Police: Teacher offers sexual favors to officer to avoid DUI arrest. Mary Maloney accused of leaving scene of hit-and-run crash"; (3) "Mary Maloney, Fla. Teacher, offers sexual favor to cop after DUI arrest, police say"; and (4) "Mary Maloney, Teacher, Allegedly Offers Oral Sex to Police Officer After Hit- and-Run Charge." Respondent was reassigned from her position teaching students on February 25, 2013, and remained on this assignment out of the classroom until January 8, 2014, when the School Board voted to terminate her employment. On December 15, 2006, Respondent signed a Drug Free Workplace Policy acknowledgement stating that she had reviewed the policy and that compliance was mandatory. Respondent's discipline history revealed a prior violation of the Drug Free Workplace policy. She received a written reprimand on October 12, 2009, for violating School Board Policy 3.96 Drug and Alcohol Free Workplace when she was under the influence of a prohibited substance while off duty which resulted in a conviction under section 316.193, Florida Statutes- -driving under the influence. Non-Stipulated Facts As a result of her adjudication of guilt on July 22, 2013, Respondent was sentenced to 12 months of probation, 30 days in the Palm Beach County Jail, 60 days house arrest (during which she was required to wear a Scram monitor), 150 hours of community service, court costs and fines. Respondent testified that she was permitted to work while she was serving her 60-day period of house arrest. Anthony D'Orsi, a police officer for the City of Greenacres, provided unrefuted testimony that while he was transporting Respondent from the scene of the DUI arrest to the police station, Respondent advised him that she was a school teacher and implied that she wanted to perform oral sex on Officer D'Orsi and allow him to "play with her breasts" in exchange for her release. On January 13, 2014, Matthew Stockwell was employed as a police officer with the City of Greenacres. Officer Stockwell provided unrefuted testimony that, after he placed Respondent in his patrol car, she made numerous statements regarding that she was sorry for what had occurred and inquired as to how much it would cost for Officer Stockwell to release her. Respondent's arrest was reported on the Channel 5 News program under the headline of "Middle School Teacher Arrested On DUI, Hit And Run—Greenacres Police Say She Tried To Bribe Them With Sex." The coverage included her photograph, and among other statements, her name, age, and position at Palm Springs Middle School. Prior to the subject incident, Respondent received satisfactory evaluations as a teacher. Respondent was rated as either effective or highly effective for the 2011-2012 school year.
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 finding Mary Maloney guilty of misconduct in office and immorality, and terminating her employment. DONE AND ENTERED this 30th day of March, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2015.
The Issue Whether Respondent committed the actions set forth in the Notice of Charge of Misconduct in Office, dated December 18, 2013, and if so, whether these actions constitute just cause for suspension.
Findings Of Fact The Walton County School Board (School Board) is charged with the responsibility to operate, control, and supervise the public schools within the School District of Walton County, Florida. During the 2013-2014 school year, Ms. Harriet Hurley was a teacher at Walton Middle School. Ms. Hurley had earlier been a teacher in Georgia for eight years, had been employed in Walton County Schools in 1984 for a period of three years, and taught in Okaloosa County Schools for five years. She then returned to Walton County Schools where she has been ever since, for a career of over 30 years. In addition to her responsibilities as a teacher at Walton Middle School, Ms. Hurley assists in scheduling parent- teacher conferences for students at Walton Middle School. Ms. Hurley’s responsibilities in scheduling conferences are limited to a coordination function. She is not responsible for addressing the substance of the issues to be addressed in the conferences or becoming involved in attempting to resolve them. Principal Hope never asked Ms. Hurley to assume a role as a guidance counselor. Ms. Hurley is employed by the School Board. As a member of the School Board’s instructional staff, Ms. Hurley’s employment is subject to section 1012.33, Florida Statutes (2013), which provides that her employment will not be suspended or terminated except for “just cause.” As a teacher, Ms. Hurley is required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures of the School Board of Walton County, Florida. Ms. Hurley is not the legal guardian of her granddaughter, B.C., who is a student at Walton Middle School. On November 20, 2013, Ms. Hurley’s granddaughter, B.C., approached her in the adult dining area about a group math assignment that was upsetting her. B.C. told Ms. Hurley that she had been told by her sixth-grade math teacher, Ms. Black, that her “high grade was gone” because of the failure of her group to complete a group math assignment. B.C. told Ms. Hurley that she blamed S.A., another student in her group, for their failure to complete the work. Ms. Hurley immediately left the adult dining area with her lunch only partially eaten and went with B.C. back to Ms. Black’s classroom. B.C. had been released for lunch a few minutes before the other students because she was an A/B Honor Roll student, so the other students were still in the classroom when Ms. Hurley arrived there. When Ms. Hurley and B.C. arrived at the classroom, the students were packing up their personal items in preparation for their release for lunch. Ms. Black testified in part: At that time, I think it was because the students leave five minutes early, A/B honor roll students. I don’t really want to go ahead and teach them anything, because they’re missing that opportunity to learn. At that time I get them to pack up and get their things together to leave for lunch. There was a high level of noise in the classroom. Ms. Black, in her first year as a teacher, was at her desk trying to help some students who did not understand something, and was in a verbal altercation with S.A., who was walking away from her. On November 20, 2013, S.A. was not a student in one of Ms. Hurley’s classes. Ms. Hurley addressed S.A., telling him that he should not talk to his teacher that way. Ms. Hurley told S.A. to “come here to me.” She was upset with S.A. and told him that he needed to stop playing around. In a loud and forceful tone of voice, she told him that he was not going to be the cause of a “straight A” student getting a bad grade and that he needed to concentrate on his schoolwork. She told him that she knew his mother, who worked at a KFC-Taco Bell restaurant in Miramar Beach, and that she would talk to his mother if necessary. S.A. denied that his mother worked at KFC, and Ms. Hurley restated that she knew that his mother did. The other students in the class heard Ms. Hurley’s disparagement and public discipline of S.A. The bell rang and Ms. Hurley and the students began to leave the classroom. S.A. was embarrassed and upset by the incident. Due to the fact that the students were already packing up their things to leave, and because Ms. Black had been in a verbal altercation with S.A., the actions of Ms. Hurley in Ms. Black’s class did not disrupt the students’ learning environment. Ms. Hurley’s actions were unnecessary. She might have comforted B.C., and encouraged B.C. and her parents to pursue the issue with Ms. Black. S.A. was not one of Ms. Hurley’s students and at the time she decided to go to Ms. Black’s class Ms. Hurley had not directly witnessed any behavior by S.A. that called for immediate correction. Even had it been appropriate for Respondent herself to take action based upon her granddaughter’s information, there was no emergency which required that Ms. Hurley intrude upon a colleague’s class and loudly berate S.A. in front of other students. She used her institutional privileges as a teacher to gain access to Ms. Black’s classroom in order to assist her granddaughter. As Ms. Black was leaving her classroom, she saw that S.A. was reluctantly moving toward the door and she noticed he was crying. She attempted to comfort him. Ms. Black then reported the incident to Mr. Jason Campbell, Assistant Principal, who was in the student lunch room. A few minutes later, S.A. also approached Mr. Campbell to report his version of the incident. Ms. Hurley returned to her lunch in the adult dining room. When Ms. Black came in to the dining room later, Ms. Hurley apologized to her for coming into her classroom. That evening, Ms. Hurley drove to Miramar Beach and went to dinner at the fast food restaurant where she knew Ms. A. worked. Ms. Hurley was one of Ms. A’s teachers when Ms. A. had been in the seventh grade, and the two were casual acquaintances. Ms. Hurley told Ms. A. what had happened that morning with S.A. and B.C. in their math group. Ms. Hurley told Ms. A. that she had “kind of stepped out and went into grandma mode” and had “gotten onto” (disciplined) S.A. Ms. Hurley relayed that she had told S.A. that she knew his mother and that if he did not improve his conduct, she was going to let his mother know about his behavior. During the course of the conversation, Ms. A. relayed that she was concerned about an incident involving a damaged globe from Mr. Price’s classroom, which was S.A.’s SPEAR classroom (“home room”). The following day, on November 21, 2013, Ms. Hurley removed S.A. from his first-period classroom. Neither Principal Hope nor Vice Principal Campbell authorized Ms. Hurley to remove S.A. from his first-period classroom on November 21, 2013. On November 21, 2013, Ms. Hurley contacted S.A.’s mother on the telephone on her own initiative and without the authority of Principal Hope or Vice Principal Campbell. Ms. Hurley called Ms. A. on the telephone with S.A. present. Ms. Hurley and Ms. A. talked about the incident involving S.A. and the damaged globe from Mr. Price’s classroom. The telephone conversation had barely begun when Mr. Hope, upon learning that Ms. Hurley had gone to S.A.’s classroom and removed him from class, came into Ms. Hurley’s room and took S.A. back to Mr. Hope’s office. While the School Board alleged that Ms. Hurley and Ms. A. discussed the incident that happened in Ms. Black’s classroom the day before, this was not shown by the evidence. The allegation that Ms. Hurley was misusing her institutional privileges by engaging in the phone call may be correct, for Ms. Hurley was not authorized to discuss the substance of parent/teacher conferences, but was instead limited to scheduling responsibilities. The evidence did not show that the phone conversation was conducted for personal gain or advantage to Ms. Hurley, however. The School Board’s further argument that Ms. Hurley’s actions on November 21, 2013, reduced the ability of Principal Hope to efficiently perform his duties is also rejected. Assuming that Principal Hope could even be considered a “colleague” of Ms. Hurley’s, the evidence showed that he was able to efficiently “track down” S.A. with minimal effort. To the extent that Ms. Hurley’s actions on November 21, 2013, exceeded her “job description,” they could be corrected with a simple directive or memorandum, and in the absence of evidence that her actions were taken for her personal gain, they are not a just cause for discipline. Statements were taken from several students in Ms. Black’s math class regarding the incident on November 20th, which vary in detail, but taken as a whole corroborate the findings of fact above regarding the incident on November 20, 2013. No statement was taken from B.C., and neither party called B.C. as a witness at hearing. On December 2, 2013, Ms. Hurley met with Walton Middle School administration to discuss the events of November 20 and November 21, 2013. On December 17, 2013, Principal Tripp Hope issued a letter of reprimand advising Respondent that he would be recommending a 10-day suspension without pay to the Superintendent. On December 18, 2013, the Superintendent notified Respondent of her intention to recommend a 10-day suspension without pay. A Notice of Charge of Misconduct in Office, dated December 18, 2013, notified Respondent of the Petitioner’s intent to suspend her employment for 10 days without pay. (As stipulated by the parties.) Although the Notice of Charge of Misconduct in Office did not explicitly identify all rules that Ms. Hurley was charged with violating, the allegations of more specific rule violations were included in the Letter of Reprimand which was attached to the charge. Ms. Hurley was not prejudiced or hindered in the preparation of her defense by any lack of specificity in the charging documents. Ms. Hurley is substantially affected by the intended action of the School Board to suspend her employment without pay for ten days. The evidence did not show that Ms. Hurley failed to “value” the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, or the nurture of democratic citizenship. The evidence did not show that Ms. Hurley did not strive for professional growth or did not “seek” to exercise the best professional judgment or integrity. The evidence did not show that Ms. Hurley did not “strive” to achieve or sustain the highest degree of ethical conduct. The evidence showed that by entering S.A.’s classroom and raising her voice in anger towards him in the presence of other students, Ms. Hurley failed to make reasonable effort to protect S.A. from conditions harmful to his learning or to his mental health. The evidence showed that any required discipline of S.A. should not have been administered by Ms. Hurley and so her actions were unnecessary. Her actions, which reduced S.A. to tears, exposed him to unnecessary embarrassment and disparagement. The evidence showed that in entering another teacher’s classroom to assist her granddaughter by disciplining S.A. when he was not even one of her students, Ms. Hurley used institutional privileges for personal gain or advantage. The evidence did not show that Ms. Hurley lacked integrity, high ideals, or human understanding or that she failed to “maintain or promote” those qualities. The evidence did not show that in entering Ms. Black’s classroom during the final minutes of the class, when the students were already packing up their things and preparing to go to lunch, Ms. Hurley engaged in behavior that disrupted the students’ learning environment. The evidence did not show that Ms. Hurley engaged in behavior that reduced her ability or her colleague’s ability to effectively perform duties. One might speculate as to whether Ms. Black’s ability to maintain control over her class in the future was undermined by Ms. Hurley’s aggressive intrusion, but Ms. Black did not testify that her ability to effectively perform was reduced and this was not otherwise shown. There was similarly no evidence offered to indicate that Ms. Hurley’s own effectiveness was reduced. Her actions were not taken in her own classroom, there was no evidence that she had any of Ms. Black’s students in her classes, or that her own students or the student body generally was even aware of her actions. The actions of Ms. Hurley on November 20, 2013, constitute misconduct in office. Her actions are just cause for suspension of her employment without pay. The School Board witnesses conceded that Ms. Hurley has never received “formal” counseling, and presented no documentary evidence that she had been counseled even informally. The School Board did present credible testimony from Principal Hope and Assistant Principal Campbell that Ms. Hurley had been informally counseled regarding raising her voice with students and for communication with her peers. The actions of Ms. Hurley on November 20, 2013, were not so serious as to justify a ten-day suspension, but do warrant suspension without pay for three calendar days.
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated August 22, 2002, and in the Notice of Specific Charges filed October 12, 2002, and, if so, whether dismissal from employment is the appropriate penalty.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is 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. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002). At the times material to this proceeding, Mr. Starr was employed by the School Board as a social studies teacher at Lake Stevens. After receiving a degree in political science from Loyola University, Mr. Starr enrolled in the social studies education program at Florida International University. Mr. Starr completed this program in the summer of 1998 and applied for a teaching position with the Miami-Dade County public school system. He was hired as a substitute teacher and placed in a substitute teacher pool so that he worked at various schools, and he also taught in the Adult Education Program at North Miami Senior High School. Dr. Alvin Brennan became the principal of Lake Stevens in January 2000. In or around November 2000, he hired Mr. Starr to teach social studies at Lake Stevens. At the times material to this proceeding, Arnold Montgomery was the assistant principal at Lake Stevens who, among other duties, supervised the social studies program, observed teachers' classroom performance, and acted as a resource person regarding curriculum, instructional, and academic issues at the school. In a Teacher Assessment and Development System Post- Observation Report dated January 18, 2001, Dina Carretta, an assistant principal at Lake Stevens, rated Mr. Starr acceptable in all six categories of the Teacher Assessment and Development System evaluation instrument. Mr. Starr's failure to keep a standard grade book. In early November 2001, Dr. Brennan learned that the State Department of Education intended to include Lake Stevens in a Full-Time Equivalency audit. The grade books of the teachers at Lake Stevens were to be reviewed as part of the audit to ensure that Lake Stevens accurately reported its full- time equivalents to the district so that the State could ultimately determine the accuracy of the number of full-time equivalents reported by the various school districts to the State. On or about November 2, 2001, Dr. Brennan instructed all of the teachers at the school to turn over their grade books to him for review so that he could prepare for the audit. It is one of the responsibilities of a teacher to maintain a grade book that contains the attendance record and grades for each student in his or her classes. Mr. Starr did not submit a grade book to Dr. Brennan in response to this instruction, and Dr. Brennan called Mr. Starr to his office and directed him to turn over his grade book. Mr. Starr told Dr. Brennan that he was experimenting with a computerized grade book and that only he could understand it.2 Dr. Brennan explained to Mr. Starr that each teacher is required to keep complete and accurate grade books because funding is dependent on the number of students attending a school and because grade books are official documents that must be produced to parents who ask about their children's grades and attendance. Mr. Starr still did not provide his grade book to Dr. Brennan as instructed. During roughly this same timeframe, Mr. Montgomery began preparations for an observation of Mr. Starr's classroom performance in accordance with the Professional Assessment and Comprehensive Evaluation System ("PACES"), which is a tool for evaluating teachers that came into use in the Miami-Dade County public school system in or about 1999. Mr. Montgomery intended to conduct an observation of Mr. Starr's classroom in late November 2001, and, in accordance with procedure, Mr. Montgomery scheduled a pre-observation conference with Mr. Starr for November 19, 2001. In the notice of the pre-observation conference, Mr. Montgomery asked Mr. Starr to bring his grade book, lesson plans, and three student folders to the conference. Mr. Starr did not attend the pre-observation conference and did not provide the materials that Mr. Montgomery had requested. Mr. Montgomery followed up with Mr. Starr and asked him again to provide the requested documents; Mr. Starr responded that he would provide the documents, including the grade book, at a later time. Mr. Starr did not provide his grade book to Mr. Montgomery prior to or at the November 26, 2001, observation. Dr. Brennan held a Conference-for-the-Record with Mr. Starr on December 7, 2001, to discuss Mr. Starr's failure to comply with Dr. Brennan's directive to provide him with a proper grade book; Ms. Carretta was also in attendance. It is noted in the Summary of the Conference-for-the-Record, dated December 13, 2001, that Mr. Starr was asked whether the United Teachers of Dade represented him, and he responded that he was not a member of the union. In the Summary of the Conference-for-the-Record, Dr. Brennan recorded that the purpose of the conference was to discuss Mr. Starr's non-compliance with School Board Rule 6Gx13- 4-1.21 and with administrative directives requiring that he properly maintain a grade book. Dr. Brennan explained to Mr. Starr during the conference the importance of maintaining a grade book to record daily attendance and grades for his students and advised him that one of his responsibilities as a teacher was to maintain a proper grade book. At the December 7, 2001, Conference-for-the-Record, Dr. Brennan advised Mr. Starr that, although there were authorized computer grade book programs, the program with which Mr. Starr was experimenting was not authorized. Dr. Brennan directed Mr. Starr not to use any computerized or computer- assisted grade books without first obtaining Dr. Brennan's approval and instructed him to ask Arnold Montgomery, an assistant principal at Lake Stevens, to help him set up and maintain a standard grade book. Mr. Starr did not believe that he was required to get Dr. Brennan's approval for the use of a computer grade book "right off the bat."3 In his view, the rules provided that Dr. Brennan had the authority to demand that he not use a computer grade book but that the School Board allowed computer grade books in general. Mr. Starr continued to use his computerized "grade book," and he did not provide a grade book to Dr. Brennan or to Mr. Montgomery during the 2001-2002 school year, despite being instructed to do so on numerous occasions.4 At some point, Mr. Starr provided Dr. Brennan with sheets of paper that Mr. Starr identified as his computerized grade book, but Dr. Brennan was unable to understand the documents that Mr. Starr presented to him. Mr. Starr's failure to adhere to Lake Stevens' discipline plan. Currently, and at the times pertinent to this proceeding, Lake Stevens has in place a discipline plan developed by the school's Discipline Committee pursuant to which teachers are required to go through five steps before taking the sixth step of requesting administrative action with respect to students who presented discipline problems. This six-step discipline plan has the approval of the teachers and administrators at Lake Stevens. Pursuant to the plan, the teachers at Lake Stevens are grouped into teams of six teachers, who work in collaboration in carrying out each step of the six-step discipline plan. It is Dr. Brennan's responsibility to ensure that the six-step discipline plan is implemented. The main elements of the six-step discipline plan are as follows: When a student misbehaves in a teacher's classroom, the teacher first initiates a discussion about the student at the daily team meeting to determine whether any other teachers on the team have a problem with that student. If necessary, the team moves to the second step, which requires that the team conduct a conference with the parent(s) of the student. If the problem still is not resolved, the third step is initiated and the student is required to confer with a school counselor. The fourth step in the six-step plan requires that the student meet with both the school counselor and the team. The fifth step is a parent/student conference with the school counselor and the team. If the problem has not been resolved after these five steps have been completed, the team then moves to the sixth step and the teacher is permitted to complete a referral sending the student to a school administrator for intervention.5 The referral must be routed through the team leader. Once the team leader approves a referral, the team leader meets with the administrator for the particular grade-level, and they decide the appropriate punishment for the student. If a teacher refers a student for administrative action before the first five steps in the plan are completed, the team leader sends the referral back to the teacher with instructions to follow the appropriate procedure. According to Mr. Starr, there was chaos in his classroom by December 2001. Prior to this time, he had spoken with Dr. Brennan about the problems he was having maintaining discipline, and Dr. Brennan told him he needed to learn to handle the problems himself. Dr. Brennan insisted that Mr. Starr strictly adhere to the six-step discipline plan, and Dr. Brennan refused to provide direct assistance to Mr. Starr even though Mr. Starr repeatedly requested his assistance. In Dr. Brennan's view, it is the teacher's responsibility to manage the learning environment, and it is not the responsibility of the principal to help the teachers maintain discipline in their classrooms. To this end, Dr. Brennan encouraged Mr. Starr to work with the team of teachers on his grade level on a daily basis for assistance in managing his classroom. In addition, Dr. Brennan directed Mr. Starr to discuss techniques for classroom management with the members of a Professional Growth Team that was appointed in December 2001 to assist Mr. Starr and with Mr. Montgomery, who was available to assist Mr. Starr. Mr. Starr resisted all efforts to assist him in managing his classroom. Mr. Starr absolutely refused to adhere to the six-step discipline plan during the entire 2001-2002 school year and repeatedly prepared referrals and sent students to the administrative offices without having completed even the first step of the six-step plan. Mr. Starr did not attend team meetings and isolated himself from the team. Because of his refusal to work with his team, it was very difficult for anyone to help Mr. Starr deal with students that he considered disruptive and defiant. Mr. Starr refused to adhere to the six-step discipline plan because he disagrees with the philosophy of the plan; he believes that misbehavior must be addressed with immediate consequences and that, because it took days to complete the five steps required before a referral could be made, the plan reinforced his students' perceptions that there were no consequences to defiance and disruption in his classroom.6 Mr. Montgomery had numerous conferences with Mr. Starr about his failure to follow the six-step discipline plan, specifically about his not following the first five steps in the plan, but, rather, going directly to the sixth step and referring misbehaving students to Dr. Brennan's office. Mr. Starr told Mr. Montgomery periodically throughout the 2001- 2002 school year that the six-step discipline plan did not work for him and that he was not going to follow the plan. Mr. Starr described the conditions in his classroom in a memorandum to Dr. Brennan dated March 5, 2002: The situation in my classroom has become dangerous and untenable due to rampant student defiance. Students no longer obey what the instructor directs them to do, and they are no longer in compliance with any class rules. Lesson objectives are not being met due to the chaos, and there is a potential that student[s] may be injured. Mr. Starr referred in his memorandum to a number of "management referrals" that he contended had not been processed by the administration, and he attributed the chaos in his classroom to "administrative neglect." Mr. Starr concludes his memorandum by stating: "The weakness in my management is due to lack of administrative support because of inadequate follow-up." Mr. Starr sent copies of this memorandum to the district office, the regional superintendent and the district superintendent of schools.7 Dr. Brennan responded to Mr. Starr's memorandum by discussing the situation in Mr. Starr's classroom with the administrator handling discipline matters for the sixth grade;8 during the discussion, Dr. Brennan "question[ed] the validity of the statements that Mr. Starr was making in his letter."9 Dr. Brennan then referred Mr. Starr to the leader of his team and to the grade-level administrator for the sixth grade for a review of the six-step discipline plan. Dr. Brennan also instructed Mr. Starr to work with his team on discipline problems. Dr. Brennan found it very difficult to assist Mr. Starr, however, because, in Dr. Brennan's view, Mr. Starr resisted all of the administration's efforts to help him with the discipline problems in his classroom and refused to implement the six-step discipline plan. In addition, many of the students identified by Mr. Starr as discipline problems were not causing problems for any of the other teachers on Mr. Starr's team. Mr. Starr's refusal to complete prescriptive activities. Mr. Starr was in his second year of an annual contract during the 2001-2002 school year and was, therefore, considered a new teacher subject to two formal PACES observations each year. Whenever a PACES observation is scheduled, the teacher is notified at least a week in advance, and a pre-observation conference is scheduled. The teacher is told to bring to the pre-observation conference his or her grade book, lesson plans, and other materials for review so that everything will be in order at the time of the observation, and the teacher and the administrator who is to conduct the observation discuss the observation procedures. Currently, and at the times material to this proceeding, new teachers at Lake Stevens are given a "free" observation, if necessary, in addition to the two required formal observations. The purpose of the free observation is to allow the administrator observing the teacher to identify the teacher's deficiencies, to discuss the deficiencies with the teacher, and to provide the teacher with assistance to remedy the deficiencies prior to the formal observation. A teacher who has deficiencies in the first observation is given a week or more to work on correcting any deficiencies before an official observation is conducted. Mr. Montgomery scheduled a PACES observation of Mr. Starr's classroom performance for November 26, 2001. In preparation for this observation, Mr. Montgomery scheduled a pre-observation conference for November 19, 2002, and he directed Mr. Starr to bring with him to the meeting his grade book, his lesson plans, and three student folders. As noted above in paragraph 10, Mr. Starr did not attend the conference, and he did not produce any of the materials requested by Mr. Montgomery. Mr. Montgomery, therefore, did not have an opportunity to review these items prior to the observation. Mr. Montgomery determined during the PACES observation on November 26, 2001, that Mr. Starr's classroom performance was deficient in a number of the components of the PACES evaluation instrument. Mr. Montgomery attributed these deficiencies in large part to Mr. Starr's failure to have a lesson plan prepared for his classes and to his inability to manage his classroom. Had Mr. Starr's classroom performance been acceptable during the November 26, 2001, observation, that observation would have been considered his formal PACES observation. Mr. Starr's classroom performance had serious deficiencies, however, and the November 26, 2001, observation was treated as a "free" observation. Mr. Montgomery met with Mr. Starr after the November 26, 2001, observation, discussed the deficiencies in his classroom performance, and instructed him to provide the grade book, lesson plans, and student folders that Mr. Montgomery had previously requested before the formal PACES observation of his classroom performance. Mr. Montgomery conducted a formal observation of Mr. Starr's classroom performance on December 3, 2001, after having given Mr. Starr one week's notice. Mr. Starr again failed to provide his grade book, lesson plans, or student folders, and Mr. Montgomery found his classroom performance deficient in five out of the seven PACES domains: Mr. Montgomery found that Mr. Starr was deficient in planning for teaching and learning; managing the learning environment; enabling thinking; classroom-based assessment of learning; and professional responsibility.10 On or about December 13, 2001, Mr. Montgomery and Dr. Brennan conferred with Mr. Starr to discuss his December 3, 2001, observation. Mr. Starr was provided with a copy of the observation and was told to work with a Professional Growth Team for assistance in correcting the deficiencies in his classroom performance. He was also directed to work with a buddy, a peer, and a master teacher to learn how to set up a grade book and to learn what must be included in a lesson plan. A Professional Growth Team consists of two teachers, one selected by the teacher and one selected by Dr. Brennan. Mr. Starr selected Ms. Davis and Dr. Brennan selected Ms. Scriven-Husband as members of the Professional Growth Team.11 Dr. Brennan gave Ms. Davis and Ms. Scriven-Husband a general outline of Mr. Starr's deficiencies and advised them of the areas in which they were to work with Mr. Starr. The work of the Professional Growth Team was done under the supervision of Dr. Brennan, and he was advised that Mr. Starr was not completing the tasks given him by the Professional Growth Team. One of the items Mr. Starr was to produce for the Professional Growth Team was a long-range plan. Dr. Brennan wanted Mr. Starr to produce a long-range plan so the Professional Growth Team could determine whether he knew how to plan a lesson. Dr. Brennan was advised that Mr. Starr did not provide such a plan to the Professional Growth Team. When Dr. Brennan questioned Mr. Starr about the plan, Mr. Starr replied that he intended to prepare it over the Christmas holidays. Dr. Brennan told him to provide the plan by the end of the day; Mr. Starr did not do so. Mr. Montgomery scheduled an informal observation of Mr. Starr's classroom performance on or about February 8, 2002. Mr. Montgomery had spoken periodically with members of Mr. Starr's Professional Growth Team between the December 3, 2001, and February 8, 2002, observations and had been advised that Mr. Starr had not provided the Professional Growth Team with his grade book, lesson plans, or student folders and that Mr. Starr had not sought the team's assistance in correcting the deficiencies identified in the December 3, 2001, observation. Mr. Montgomery again instructed Mr. Starr to provide his grade book, lesson plans, and student folders prior to the February 2002 observation. In response to this instruction, Mr. Starr advised Mr. Montgomery that he used an electronic grade book and that his lesson plans were on his Palm Pilot because he felt that he had more flexibility using these tools than trying to work with written documents. Mr. Montgomery told Mr. Starr to provide hard copies of the lesson plans and the grade book, as required by the Miami-Dade County public school system procedures; Mr. Starr did not provide the requested documents to Mr. Montgomery. Mr. Montgomery observed numerous deficiencies in Mr. Starr's classroom performance during the February 8, 2002, observation, and Mr. Montgomery discussed the results of the observation with Dr. Brennan. Mr. Montgomery conducted a formal observation of Mr. Starr's classroom performance on March 1, 2002. Again, Mr. Montgomery noted a number of deficiencies in Mr. Starr's classroom performance, specifically in seven components of Domain I, Planning for Teaching and Learning; eight components of Domain II, Managing the Learning Environment; two components of Domain V, Enabling Thinking; and one component of Domain VI, Classroom-Based Assessment of Learning. Dr. Brennan discussed the results of the March 1, 2002, observation with Carnel White, the Region Superintendent for Lake Stevens, who instructed Dr. Brennan to proceed to develop a Professional Improvement Plan.12 Dr. Brennan was, by this time, certain that Mr. Starr was not going to correct the deficiencies in his classroom performance, since the deficiencies noted in the March 1, 2002, observation were the same deficiencies noted in previous observations. Mr. Starr met with Dr. Brennan and Mr. Montgomery in a Conference-for-the-Record on March 15, 2002, to discuss the results of the March 1, 2002, observation.13 An extensive Professional Improvement Plan was developed for Mr. Starr during the Conference-for-the-Record: Mr. Starr was required to complete course work for Domains I, II, V, and VI; he was required to discuss with the Professional Growth Team 17 assigned readings and to submit written summaries of these readings to Dr. Brennan for his approval; and he was required to discuss with Dr. Brennan and identify for him techniques and strategies for 14 components in which he was deficient, to apply the new techniques and strategies, and to maintain and submit to Dr. Brennan logs charting the successes and failures in his application of these new classroom techniques and strategies. All of the courses and plan activities in the Professional Improvement Plan were to be completed by April 9, 2002.14 Mr. Starr was advised at the March 15, 2002, Conference-for-the-Record that he should speak to Mr. Montgomery if he had any concerns about the Professional Improvement Plan. Mr. Starr did not complete the plan activities set forth in the Professional Improvement Plan by the April 9, 2002, deadline. On April 9, 2002, Dr. Brennan called Mr. Starr to the office to ask him to submit the written plan activities required by the Professional Improvement Plan; although Mr. Starr presented himself at the main office, he refused to go into Dr. Brennan's office to meet with him. According to Dr. Brennan, Mr. Starr also advised him at this time that he did not intend to comply with any further administrative directives. On April 10, 2001, after conferring with Dr. Brennan, Mr. White placed Mr. Starr in an alternate work assignment at his residence, pending a district-level Conference-for-the- Record requested by Mr. White. The district-level Conference- for-the-Record was held at the Office of Professional Responsibilities on April 12, 2002, to discuss Mr. Starr's failure to comply with the Professional Improvement Plan; his insubordination; his violation of Rule 6B-1.001, Florida Administrative Code; and his future employment status with the School Board. The April 12, 2002, Conference-for-the-Record was conducted by Barbara Moss, District Director of the Office of Professional Standards, and Ms. Moss prepared a Summary of the Conference-for-the-Record dated May 3, 2002. In the summary, Ms. Moss noted that, prior to the conference, Mr. Starr asked to bring an attorney to the Conference-for-the-Record and to tape the proceedings and that he was told that attorneys and tape recordings were not permitted. Ms. Moss also noted that Mr. Starr accused Dr. Brennan of harassing him and that she discussed with Mr. Starr the procedure for reporting harassment and gave him an Equal Employment Opportunity packet. Ms. Moss further noted that Mr. Starr stated that he wanted to file a grievance against Dr. Brennan and that she explained the procedure for filing a grievance and gave him a copy of the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade, which contained the formal union grievance procedure. Mr. Starr was not, however, a union member and did not have access to this procedure. Mr. Starr's failure to comply with the plan activities specified in the Professional Improvement Plan dated March 15, 2002, was discussed at the April 12, 2002, Conference-for-the- Record. It is reported in the summary that Mr. Starr stated that he believed the evaluation process was designed to make him fail and that there was a conspiracy against him. According to the Summary of the Conference-for-the- Record, Mr. Starr confirmed during the conference that he had told Dr. Brennan that he wouldn’t comply with Dr. Brennan's directives, explaining that he defied Dr. Brennan because Mr. Starr perceived that Dr. Brennan was abusive and belligerent in his dealings with him. The summary also reflects that Mr. Starr's failure to provide Dr. Brennan with a student grade book and with attendance records was specifically discussed at the Conference-for-the-Record. The summary of the April 12, 2002, Conference-for-the- Record reflects that Mr. Starr was issued the following directives: He was directed to comply with all administrative directives; to complete all Professional Improvement Plan activities and to submit them to Dr. Brennan by the end of the workday on April 15, 2002; to maintain a grade book, a record of students' attendance, and lesson plans; and to implement Lake Stevens' discipline plan to effect classroom management. Mr. Starr was also told to submit to Dr. Brennan by April 15, 2002, an updated grade book and student attendance records. Finally, Mr. Starr was advised that he could return to Lake Stevens and resume his teaching duties on April 15, 2002. Mr. Starr indicated at the conclusion of the April 12, 2002, Conference-for-the-Record that he would comply with the directives. Finally, Mr. Starr requested at the April 12, 2002, district-level Conference-for-the-Record that Mr. White order Dr. Brennan to relieve him of the sixth period class, stating, according to the summary, that he was not capable of teaching six periods. Mr. White instructed Dr. Brennan to assign the sixth period to another teacher, which Dr. Brennan did.15 When Dr. Brennan did not receive Mr. Starr's completed Professional Improvement Plan activities by April 15, 2002, he extended the deadline to April 16, 2002. Mr. Starr did not provide the materials on April 16, 2002, and Dr. Brennan summoned Mr. Starr to his office.16 According to Dr. Brennan, Mr. Starr was disruptive when he arrived at the administrative offices in response to Dr. Brennan's summons on April 16, 2002. Mr. Starr announced in the main office, in front of several members of the school staff, that he was not going into Dr. Brennan's office, and he told Dr. Brennan not to summon him to Dr. Brennan's office again.17 Dr. Brennan telephoned Ms. Moss on April 16, 2002, after this incident, and advised her that Mr. Starr "had been blatant in his insubordination" and that either Mr. Starr would have to leave the Lake Stevens campus or he, Dr. Brennan, would leave.18 On April 17, 2002, Dr. Brennan conducted a PACES observation of Mr. Starr for his annual evaluation. The Observation Form for Annual Evaluation indicates that Dr. Brennan observed Mr. Starr's classroom performance from "12:30 to 12:50."19 Mr. Starr again failed to have a lesson plan, and Dr. Brennan found that Mr. Starr was deficient in every component of the six PACES domains evaluated. The evaluation form reflects that a post-observation meeting was held on April 19, 2002, at which time Mr. Starr signed the evaluation form and wrote on the form that he did not agree with the evaluation. On April 18, 2002, Dr. Brennan issued a notice advising Mr. Starr that a Conference-for-the-Record had been scheduled for April 22, 2002, to discuss Mr. Starr's failure to comply with the Professional Improvement Plan, gross insubordination, violation of the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida, and violation of School Board Rule 6Gx13-4A-1.21. According to the Summary of the Conference-for-the- Record, the conference was held in Mr. Starr's absence because of "his refusal to comply with an administrative directive." Dr. Brennan referred in the summary to Mr. Starr's "refusal to report to the principal's office" and categorized the refusal as insubordination and conduct unacceptable for a School Board employee. Assistant Principal Dina Carretta was the only person other than Dr. Brennan attending the Conference-for-the-Record. During the April 22, 2002, Conference-for-the-Record, Dr. Brennan prepared a Professional Improvement Plan for PACES Domain VII, Professional Responsibilities, having found Mr. Starr deficient in that domain, because he failed to comply with the March 15, 2002, Professional Improvement Plan; failed to submit by the required date the activities set out in the Professional Improvement Plan; and failed to comply with "district and school site requirements regarding grade book and student's attendance records." Mr. White again placed Mr. Starr on alternate work assignment at his residence, effective April 24, 2002. Ms. Moss included in the Summary of the Conference-for-the-Record held April 12, 2002, which she prepared on May 3, 2002, a notation that, on or about April 24, 2002, she spoke with Mr. Starr and advised him that he could resign his position if he did not wish to comply with administrative directives and the Professional Improvement Plan activities. According to the notation in the summary, Mr. Starr again affirmed that he would comply with the directives and the plan activities. After she prepared the summary of the April 12, 2002, Conference-for-the-Record, Ms. Moss submitted it to the School Board's attorneys for review because Dr. Brennan and Mr. White had recommended that Mr. Starr's employment with the Miami-Dade County public school system be terminated. The bases for the termination recommendation included gross insubordination, violation of School Board rules, and violation of the Code of Ethics of the Education Profession. In July 2002, after it was decided that a recommendation would be made to the School Board that Mr. Starr be terminated as a teacher with the Miami-Dade County public school system, Ms. Moss met with Mr. Starr to advise him of the recommendation; she also gave Mr. Starr another opportunity to resign his position, which he refused. Summary. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Starr repeatedly refused to comply with directives and instructions from Dr. Brennan and Mr. Montgomery that were reasonable and within the scope of their authority and that, in at least one instance, Mr. Starr openly and publicly defied an order given by Dr. Brennan. Mr. Starr freely admits that there was a serious lack of discipline among the students in his classroom and that the problems were so severe that he was unable to teach and the students were unable to learn. Mr. Starr also admits that he defied Dr. Brennan in almost everything that Dr. Brennan directed him to do and that he was repeatedly insubordinate towards Dr. Brennan. Although Mr. Starr's defiance of Dr. Brennan's directives consisted, for the most part, of a stubborn refusal to do as Dr. Brennan directed, Mr. Starr did cause a public disturbance in the main office by refusing to enter the principal's office when summoned on April 16, 2002, thereby openly defying Dr. Brennan's authority to summon Mr. Starr to his office. Mr. Starr's refusal to comply with reasonable administrative directives and his blatant defiance of Dr. Brennan reflected discredit on Mr. Starr as a teacher. The evidence is also sufficient to establish with the requisite degree of certainty that, from December 2001, until he was removed from the classroom on April 24, 2002, Mr. Starr did not make any effort to work with Mr. Montgomery or with his Professional Growth Team to improve his teaching and class management deficiencies, nor did he make any effort to complete the activities set forth in the Professional Improvement Plan that were designed to assist him in achieving professional growth. Mr. Starr's failure to strive for professional growth by working to correct the deficiencies identified in Mr. Montgomery's December 3, 2001, and March 1, 2002, observations negatively affected his ability to teach his students. Mr. Starr refuses to accept responsibility for the lack of discipline in his classroom. Rather, he faults Dr. Brennan for failing to help him impose discipline on those students who were misbehaving and defying Mr. Starr's authority. According to Mr. Starr, the six-step discipline plan did not work, and, once the students realized that there were no consequences if they behaved badly, it was impossible for him to manage the students in his classes. Mr. Starr also believes that, if Dr. Brennan cared about Mr. Starr's professional development, Dr. Brennan would have "developed a specific strategy of corrective action for students that were defiant" towards him.20 Mr. Starr considers his defiance of and insubordination towards Dr. Brennan "principled," and he believes that he had "no other reasonable recourse" but was forced by Dr. Brennan to defy Dr. Brennan's administrative directives.21 Additionally, Mr. Starr justifies his refusal to complete the Professional Improvement Plan activities, to keep a standard grade book, to adhere to the six-step discipline plan, and to prepare lesson plans on the grounds that Dr. Brennan behaved towards him in an abusive and belligerent manner and attempted to set him up for termination. It may well be, as Mr. Starr contends, that Dr. Brennan began losing patience with Mr. Starr, as the 2001-2002 school year progressed; it may well be that Dr. Brennan's manner towards Mr. Starr became increasingly abrupt; and it may well be that Dr. Brennan could have provided Mr. Starr with more assistance than he was willing to provide. Whatever Dr. Brennan's failings as Mr. Starr's principal, however, Mr. Starr was not justified in defying Dr. Brennan, in refusing to obey Dr. Brennan's directives, and in generally behaving in a manner inappropriate for a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order Finding that Stephen J. Starr, Jr., violated School Board Rule 6Gx13-4A-1.21 and committed gross insubordination and misconduct in office; Sustaining his suspension; and, Terminating his employment as a teacher with the Miami-Dade County public school system. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2003.
