The Issue Whether Respondent, Lucille Stuart Foster (Respondent), violated provisions of Florida law governing teachers and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, as the Commissioner of Education, is responsible to investigate and prosecute complaints against persons who hold a Florida Educational Certificate, and are alleged to have violated provisions of law related to the education profession in the State of Florida. See §§ 1012.79 and 1012.795, Fla. Stat. (2010). Respondent holds a teaching certificate in Florida, Certificate Number 383630, that covers the areas of reading, mathematics, and music. Respondent's certificate is valid through June 30, 2015. At all times material to the allegations of this case, Respondent was employed by the Collier County School District (District) and worked as a music teacher at the elementary school level. Prior to the allegations encompassed within this case, Respondent had not been disciplined by the District. Respondent was employed by the District from 1976 through the 2009-2010 school year. With the exception of one year, Respondent's performance evaluations have been acceptable until the allegations of this matter arose. Prior to the 2008-2009 school year, Respondent was assigned to one school on a full-time basis. Beginning in 2008, Respondent was assigned to be an "itinerant" teacher. As such, Respondent was directed to teach at three different elementary schools and to move among the schools during the school week, as her schedule dictated. The three schools were Corkscrew Elementary, Golden Terrace Elementary, and Big Cypress Elementary. An administrator at each of the schools was assigned supervision and evaluation duties for Respondent's job performance. All of the administrators required that Respondent prepare and submit lesson plans for review. All of the administrators observed Respondent in the class setting. All of the administrators found deficiencies in Respondent's job performance. At the conclusion of the 2008-2009 school year, the District returned Respondent from her continuing contract status to an annual contract. More critical to this case, however, is the fact that the District put Respondent on a prescriptive plan for improvement so that she could address the deficiencies in her work performance. The District offered support services to encourage Respondent to make the improvements needed. Respondent did not acknowledge, and does not acknowledge, that her work performance during the 2008-2009 school year was unacceptable. Respondent maintained that one of the administrators harassed her and then wrongly sought to discipline her. When the 2009-2010 school year began, Respondent was directed to complete remediation so that the problem areas of her job performance could improve. Specifically, Respondent was to prepare and timely submit appropriate lesson plans. She was to follow the plans in the teaching of her students. She was to maintain classroom decorum so that students would remain on task and not disrupt or interfere with the learning experience. In recognition of the difficulty of teaching at three different schools, Respondent was allowed to prepare one lesson plan that could be implemented at all three locations. It was expected that music students would prepare for and publicly perform at designated school functions. In the past, Respondent successfully led her students in many performances that demonstrated an appreciation for music and musical achievement. During the 2009-2010 school year, however, Respondent's ability to focus on the improvements sought by her administrators diminished. As her frustration level grew, her civility toward one of the administrators waned. Respondent was convinced that efforts to assist her were not genuine. Principal Lettiere, Respondent's supervisor at Big Cypress Elementary School, identified the following deficiencies in Respondent's job performance: Failure to have lesson plans; Failure to timely submit adequate lesson plans; Insufficient delivery of lesson plans to the class; Failure to tie the lesson plan to the lesson taught; Failure to timely report for work; and Failure to provide an accommodation for a student with disabilities during the music lesson. Principal Lonneman, Respondent's supervisor at Corkscrew Elementary School, identified the following deficiencies in Respondent's job performance: Failure to keep students engaged during class time; Failure to include musical instruments into the music curriculum; Failure to timely prepare lesson plans; and Failure to incorporate the music curriculum within lesson plans. Principal Glennon, Respondent's supervisor at Golden Terrace Elementary School, observed Respondent multiple times during the 2008-2009 school year. Principal Glennon documented the following deficiencies in Respondent's job performance: Failure to keep students on task; Lack of classroom management skills; Failure to have a structured lesson; and Failure to follow adequate lessons. Principal Glennon tried to meet with Respondent to go over the deficiencies, but Respondent did not timely comply with his requests for a conference. Instead, Respondent has steadfastly and resolutely claimed her teaching skills to be adequate, if not superior. In February 2009, Principal Glennon cited Respondent for failure to report to work; failure to provide a classroom management plan, as he had requested; and failure to redirect students who engaged in off-task behaviors. In March 2009, Respondent was advised that she would be returned to annual contract status at the end of the school year. Respondent received a contract for the 2009-2010 school year, but began the year with a plan for her improvement in the classroom. Respondent was afforded 90 days within which to improve her performance. Mr. Glennon hoped that by outlining the areas that needed to be improved, Respondent would soldier on and make the necessary corrections. When Respondent failed to address the concerns outlined by her improvement plan, her school administrators, with the consent and authorization of the District superintendent, removed her from the schools. Respondent was placed in the status of "pool" teacher and completed the 2009- 2010 school year in that assignment with benefits and salary. At the end of the year, Respondent's contract was not renewed. Respondent is a talented musician who played with a local symphony for many years. Early in her career, Respondent was effective as a music teacher. Respondent was praised by former administrators who worked with her during those times. None of the former administrators observed Respondent during the periods of time critical to this case. It is unknown whether during those earlier years the requirements regarding lesson plans, classroom management, and curriculum were the same or similar to the requirements of the 2008-2009 and 2009-2010 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent's teaching certificate be suspended for a period up to one year during which time Respondent be required to successfully complete continuing education courses to address Respondent's deficiencies in classroom management, lesson plans, and professionalism. DONE AND ENTERED this 30th day of November, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 November, 2012. COPIES FURNISHED: Peter James Caldwell, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew K. Foster, Esquire Brooks, LeBoeuf, Bennett, Foster and Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant Principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as Principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an Intern Principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time Intern Principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and (5) accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, a fact which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract. Employment Requiring a Teaching Certificate At the time of hearing, Ms. Maynard had not found employment requiring a teaching certificate since being suspended, without pay and benefits, by the School Board on or about March 18, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education enter a final order: Finding that Doreen Maynard committed Counts 2 (only as to gross immorality), 3, 4, 5, 7, 10, 12, 15, and 16; Dismissing Counts 1, 6, 8, 9, 11, 13, 14, and 17; and Suspending Doreen Maynard's educator's certificate for three years, with denial of an application for an educator's certificate for the three-year period, and, after completion of the suspension, placing her on probation for one year under terms and conditions deemed appropriate by the Commissioner of Education. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2011.
The Issue Whether Respondent should be dismissed from her position as a Media Specialist or otherwise disciplined for alleged violation of Section 231.09, and 231.36(6), F.S., as set forth in the Petition dated June 13, 1983. This proceeding arises from a Petition filed by William T. McFatter, Superintendent of Schools for the Broward County School System, on June 13, 1983, that seeks to dismiss Respondent, Antionette Pauline, a media specialist in the public schools of Broward County, Florida. In five (5) Counts, the Petition alleges as follows: That on May 4, 1983, the Respondent grabbed Steven Richardson, a fifth grade student at Nob Hill Elementary School, by the arm and forcibly pushed said student against or into a classroom door approximately three (3) times, which action constitutes misconduct in office in accordance with applicable Florida Statutes, State Board of Education Administrative Rules, and School Board policies; That on May 4, 1983, the Respondent took Steven Richardson's media center pass and pulled on the front of teacher Verda Farrow's blouse in the presence of said student and forcibly jammed the pass down the inside front of the teacher's blouse, which action constitutes misconduct in accordance with applicable Florida Statutes, State Board of Education Administrative Rules, and School Board policies; That on February 16, 1983, the Respondent was directed to cease from verbally attacking teachers, and that she again verbally attacked Verda Farrow on May 4, 1983, which action constitutes gross insubordination and/or willful neglect of duty in accordance with applicable Florida Statutes, State Board of Education Administrative Rules, and School Board policies; That during the 1981-1982 school year, the Respondent had several other encounters with faculty and students at Sunrise Middle School and that during the school year 1982-1983, the Respondent had several encounters with the faculty at Nob Hill Elementary School, the result of which would make it difficult, if not impossible, for Respondent to recover and be an effective librarian, which actions constitute misconduct in office and/or willful neglect of duty and/or incompetency, in accordance with applicable Florida Statutes, State Board of Education Administrative Rules, and School Board policies; and That the Respondent has violated the Code of Ethics by failing to practice her teaching profession with the highest ethical standards by failing to protect the student, Steven Richardson, from unnecessary embarrassment or disparagement, by failing to protect the student from conditions harmful to learning and/or safety, and/or by making false or malicious statements about her colleagues, which actions constitute misconduct in office in accordance with applicable Florida Statutes, State Board of Education Administrative Rules and School Board policies. Respondent denied the allegations in the Petition and requested an Administrative Hearing. Thereafter, eighteen (18) witnesses were called by the Petitioner, five (5) witnesses were called by Respondent, and forty (40) exhibits were offered into evidence. The deposition testimony of Ernest M. Roberts was accepted as a late-filed exhibit. Further, ruling on the admissibility of the polygraph examination conducted upon Respondent was deferred. The testimony of the polygraph examiner, his chart, and rebuttal testimony were offered by proffer, subject to a continuing objection as to its admissibility, without stipulation, in an Administrative Hearing. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at the final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.
Findings Of Fact The Respondent, was employed by the Broward County School Board commencing with the school year 1960-61. She was originally employed as a librarian in an elementary school and, thereafter, held several positions, including Media Specialist (librarian) with the Broward County Migrant Program and the State Department of Education, Florida Migratory Section. She presently holds a Master's Degree in library science which she received in July of 1975. In 1977, the Respondent obtained a position at Dillard High School and was promoted to the position of Head Media Specialist. At the conclusion of the school year 1980-81, the Respondent was administratively transferred by the Area Superintendent to Sunrise Middle School, where she remained as a media specialist for that school year, when she was again administratively transferred by the Area Superintendent to Nob Hill Elementary School for the school year 1982-83. Following the incident which occurred on May 4, 1983, Respondent was transferred to the staff of the Director of Learning Resources of the Broward County School System for the remainder of school year 1982-83. Thereafter Respondent was suspended pending the results of this hearing. During her tenure at Dillard High School, the Respondent incurred several problems with the staff and the principal wherein complaints were received from teachers who were not utilizing the media center, and from students who felt they were being treated unfairly. The Respondent had a problem interacting and communicating with white people and as a result, became ineffective. When Amos Bonner, the principal at Dillard High School, concluded that Respondent's effectiveness had been impaired, he brought the matter to the attention of the Area Superintendent, William Dandy. Consequently, the Respondent was administratively transferred to Sunrise Middle School. During the school year 1981-82, while assigned to Sunrise Middle School, the Respondent incurred similar problems with the faculty and students at that school. Her principal, Nick Gancitano, found her to be defensive, negative, and communicated with the faculty, students and administration in a negative way. Students were not using the library, and there was a dramatic decrease in the number of books being circulated from the previous year. As the problem seemed to get progressively worse, throughout the year, her principal concluded that her overall effectiveness as a Media Specialist was impaired. Principal Gancitano, who was charged with the responsibility for evaluating the performance of the Respondent in accordance with her job description, concluded that the Respondent lacked the "ability to work with principals, teachers and other appropriate educational leaders in order to design learning experiences and to recommend educational media suited to specific instructional objectives, and to stimulate effective utilization of media" and, further, lacked the "ability to inspire and gain the respect of staff and students." Michael Galbreath and James Rupp, fellow teachers at Sunrise Middle School, related incidents where children were crying out of frustration and upset with the experiences that they encountered in the library. It reached the point that Mr. Galbreath would not take his classes to the library. Instead, he would sneak into the library or would purchase books from his own financial resources, for classroom use, so the children would not have to enter the library. Mr. Galbreath testified that the Respondent's attitude was belligerent and intimidating, and that other classroom teachers had also refused to take their children to the library. He concluded that the Respondent's effectiveness as a Media Specialist was impaired and that, as a direct result of her severe problems in dealing with people, the Respondent was incompetent. Mr. Rupp testified that the Respondent was "standoffish" and that she didn't really want to relate to everyone that was at the school. He was also aware that children were not utilizing the library facility towards the end of the year and he concluded that her effectiveness as a Media Specialist was "null and void." During the school year 1981-82, these complaints were brought to the attention of the Area Superintendent, William Dandy, who requested an investigation. He had received complaints from parents and from teachers concerning the Respondent. Because of her inability to discharge her required duties at Sunrise Middle School, at the conclusion of school year 1981-82, Respondent was again administratively transferred this time to Nob Hill Elementary School. While at Nob Hill Elementary School during school year 1982-83, Respondent again involved herself in altercations with other faculty members. Susan Reynolds, a fellow teacher at Nob Hill Elementary School, testified that Respondent threatened to "choke her" and that as a result of the comment, she was intimidated and afraid of the Respondent. She called this to the attention of Ernest Roberts, the Principal at Nob Hill. The Respondent also had a confrontation with Verda Farrow, which resulted in Mr. Roberts directing the Respondent to cease from verbally attacking and accusing teachers of "talking about you" and "spying on you." On May 4, 1983, Steven Richardson, then a fifth grade student of Verda Farrow's went to the library with a pass to check a bibliography. The Respondent was reading to a kindergarten class and for no justifiable reason she determined that Steven Richardson's attempt to gain her attention was disruptive. She took Steven Richardson to the office and discovered that Mr. Roberts was out of the building. Thereafter, she took the student to Verda Farrow's classroom to discuss the matter with her. During the conversation that ensued outside the classroom door, the Respondent grabbed Steven Richardson by the arm and attempted to push him into the door approximately three times. Respondent also grabbed Mrs. Farrow by the dress, pulled her dress loose, and stuffed the library pass down the front of Mrs. Farrow's dress. This incident was witnessed by Steven Richardson and several of the students in the classroom at the time, three of whom testified at the Hearing. Following the incident on May 4, 1983, a Police Report was filed, and school security conducted an investigation of the alleged incident. Faculty members, upon becoming aware of the incident, boycotted the library and several parents, who became aware of the incident, wrote unsolicited letters requesting that their children not be sent to the library. Arthur Rose, President of the Nob Hill Elementary School P.T.O. Advisory Committee, became aware of the situation and received phone calls at his office and his home from parents who were concerned regarding their children. Mr. Rose believes that he and the parents with whom he spoke had concluded that Respondent's effectiveness as a Media Specialist had been impaired. The parents were desirous of having the Respondent removed from the school and they feared for the safety of their children. Following the investigation by school security, the Respondent was transferred on a temporary basis to the staff of the Director of Learning Resources by Benjamin F. Stephenson, Associate Superintendent for Personnel. This was not an existing position. The Respondent denied ever touching Steven Richardson. The Respondent admits that the position of Media Specialist, or librarian, is in some respects more difficult than the position of a classroom teacher, in that a classroom teacher is only responsible for dealing or communicating with one class of students, while a Media Specialist must effectively communicate with three or four hundred children a day. The Respondent also agrees that a librarian must have good communication skills among faculty members. To corroborate the Respondent's contention that she did not grab Steven Richardson and push him into the door, the Respondent submitted to a private polygraph examination conducted by Robert Rios, who concluded that the Respondent did not attempt deception when asked whether she grabbed Steven Richardson by the arm and pushed him into the door on May 5, 1983. He concluded that the reliability of this polygraph examination should have at least equal weight to eyewitness testimony. In rebuttal to the proffered testimony of Mr. Rios, his polygraph examination chart and findings were reviewed by Carl Lloyd, investigator and polygraph examiner for the State Attorney's Office in Broward County, Florida, and the individual under whom Mr. Rios served an internship. Mr. Lord had previously supervised Mr. Rios in conducting twenty or thirty polygraph examinations, and has reviewed his charts in one hundred fifty to three hundred cases. Mr. Lord concluded, based upon the pre-test and test procedures utilized, that the validity of the test conducted upon Respondent was less than fifty (50%) percent. Mr. Lord further testified that in the State of Florida, polygraph examinations are only admissible in Court upon stipulation of both parties. The purpose of the stipulation is to ensure that the subject is testable, that there is a testable issue, and that the pre-test and test procedures utilized result in conclusive and reliable findings.
Recommendation It is recommended that the Respondent be dismissed from employment by the School Board of Broward County. DONE and ORDERED this 31st day of January, 1985 in Tallahassee, Leon County, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of January, 1985 COPIES FURNISHED: William S. Cross, Esquire 4540 North Federal Highway Fort Lauderdale, Florida 33308 Ronald W. Houchins, Esquire 3075 W. Oakland Park Boulevard Suite 103 Fort Lauderdale, Florida 33311 William T. McFatter Superintendent of Schools Broward County School System 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312
The Issue The issue in this case is whether there is just cause for Broward County School Board to suspend Lula Faison for 10 days without pay based upon the allegations made in its Administrative Complaint filed on October 11, 2017.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Broward County. Art. IX, Fla. Const.; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Faison was hired by the School Board on February 10, 2004. She started her employment with the School Board at Sunset Center School, an off-campus program at Smith Community Health, where she taught for approximately four years. She was employed pursuant to a professional services contract with Broward County. Faison is a certified Exceptional Student Education ("ESE") and English for Speakers of Other Languages ("ESOL") teacher. She has worked with Emotional/Behavioral Disability ("EBD")1/ students her whole career with Broward County. She started working for Pompano Beach Elementary School ("Pompano") during the 2010-2011 school year as an ESE teacher for EBD students. During her first two years at Pompano, she had fourth- and fifth-grade EBD students. During the 2015-2016 school year, Faison's classroom was mixed with 10 EBD students in grades kindergarten, first, second, and third, with ages ranging from six to 10 or 11. The younger kids mimicked the older students' behavior, and it was challenging for Faison to control the classroom. Faison's classroom had the highest rate of incidents compared to the other EBD classrooms in the cluster at Pompano. Faison had both a paraprofessional, Hunt, and a substitute teacher, Popov, to assist in her classroom to help bring order. Hunt was assigned to assist Faison in her classroom with point sheets, monitoring the children, helping isolate behaviors, as well as manage and teach students. A.J. was approximately nine years old when he joined the EBD program during the 2015-2016 school year. A.J. was an enjoyable kid, but had numerous behavioral episodes. He was very explosive and lacked a concern for safety. He had various home issues going on. Additionally, A.J. was also a runner2/ and he had nine elopements3/ from January to April 2016. Pompano's protocol for if a student elopes was that administration was notified; the elopement was communicated over the school walkie-talkie system to notify staff to be aware to look out for the student; once the student was located, the locator was to keep eyes on the student; and typically a separate individual went after the student while the other watched. Safety is always the priority in any elopement. Faison was trained in the elopement protocol and was familiar with its process. While at Pompano, Faison never had any difficulty implementing or dealing with elopement protocols. On April 18, 2017, Faison reported to work late. Upon her arrival, Hunt had written the morning activities on the board and was instructing her classroom. Soon thereafter, Popov arrived and Faison took her class out to the playground. Popov assisted Faison taking the students outside, but she only remained about five minutes and then left Faison alone with the students. When no one came out to assist Faison with the students on the playground, she decided to take the students back inside. At the time, A.J. was playing with sticks. Faison instructed A.J. to put the sticks down because he could not bring them inside. She encouraged him to put them under the bench to retrieve and play with later. A.J. refused to put the sticks down and wanted to bring them inside. Faison told A.J. to walk with her and he did. Faison walked the students inside from off the playground headed to her classroom and ran into Popov. Faison had Popov walk the kids the remainder of the way into Faison's classroom so that Faison could deal with A.J. and the sticks. Faison had been trained in Professional Crisis Management ("PCM"). She evaluated the situation with A.J. and she determined that the best behavioral technique and de- escalation strategy to get A.J. to comply and put the sticks down, was to ask Felix to assist with A.J. Felix had a good relationship with A.J. Previously, A.J. had responded well to Felix and Felix had been able to calm A.J. down. Faison did not want A.J. to hurt anyone with the sticks. Faison went to the TAB room4/ where Felix was assigned. A.J. still had the sticks and was behind Faison in the hallway when she approached Felix's classroom.5/ Faison opened the door to the TAB room and observed that Felix had several students in his room that he was supervising when Faison arrived and that Felix was the only adult present. Faison stood in the doorway and explained to Felix that A.J. was not listening to her. She wanted to see if Felix could assist her and get him to come inside the classroom without the sticks. Faison requested that Felix help her out and speak to A.J. Faison held the conversation with Felix at the TAB room door with her body halfway in the door and Felix standing in the doorway on the TAB room side. When Faison turned around to address A.J. in the hallway, he was not there. Felix never saw A.J. in the hallway. When Faison discovered A.J. was no longer in the hallway, she thought A.J. was outside of Felix's classroom and she made a reasonable request that Felix call him in through the side door of the TAB classroom. Felix did not indicate to Faison that he either agreed to or refused to assist with or go after A.J. Faison left the TAB room believing that Felix was going to get A.J., which was a mistake because Felix did not follow up with A.J., unbeknownst to Faison. Faison's actions of not following up and believing Felix had followed up with A.J. were an isolated incident of misjudgment. After their discussion, Faison returned to her classroom. Later that morning, Pompano's secretary put out an elopement call on the Pompano walkie-talkie system. Faison did not receive the call because she did not have a walkie-talkie on April 18, 2016. Felix heard the elopement call and walked outside of the door towards the parking lot and emerged near the entrance of the school. There, Felix saw A.J. with a stick by the school marquee near the outer boundary of the school on the far end of the school property. Hunt also heard the elopement call on the walkie- talkie and went outside to follow the Pompano elopement protocol. Felix and Hunt worked together. Felix went to the left and Hunt went to the right to encircle A.J. When A.J. noticed them, he took off running toward 13th Avenue. Hunt and Felix caught A.J. approximately a block away from the school at the intersection of Northeast 8th Street and Northeast 13th Avenue near the baseball field. Following elopement protocol, Felix and Hunt let the administration know by walkie-talkie that they had caught up to A.J. The resource officer arrived and put A.J. in the patrol car because A.J. was combative. Principal Larson also appeared at the scene to check and see if everything was fine. Afterwards, Larson discussed A.J.'s elopement with Felix and decided he needed to follow up with Faison to determine what happened with A.J. When A.J. was returned to campus, he went to the TAB room to cool down and to determine why he eloped. Faison was not aware that A.J. had eloped. She was taking her students to lunch alone,6/ midway through the hallway about to lead the kids into the cafeteria, when Larson caught up with her and made the reasonable request that she come to him to have a discussion. He wanted to discuss the A.J. incident. Faison told Larson no when he told her to step aside and talk with him. Larson addressed Faison twice more and requested that she come to him. Faison refused to approach or talk to Larson. The third time Larson requested that Faison come to him, he informed her that she was being insubordinate. Faison felt she should not have left the kids and responded by telling Larson "I've been insubordinate all year." She finished walking the kids to the cafeteria following Larson's instructions. Broward County School Board's Police Special Investigative Unit and Broward Sheriff's Child Protective Investigations Services investigated A.J.'s April 18, 2016, off- campus elopement. Onagoruwa investigated the incident within 24 hours, including interviewing A.J. and closed her case as non-substantiated because no physical harm occurred to A.J. While at Pompano, Faison's previous discipline included: a summary memo dated May 2, 2014, regarding IEP deadlines; a second summary memo for failure to complete IEPs on time dated May 2, 2015; a disciplinary memo dated October 27, 2015, for failure to adhere to IEP deadlines and verbal reprimand of November 3, 2015; a February 1, 2016, written reprimand following a pre-disciplinary hearing meeting for failure to submit lesson plans and a comprehensive behavior plan; and a second written reprimand dated March 16, 2016, for failing to complete third grade portfolios and insubordinate behavior of hanging up the phone on Larson and refusing to meet with him in his office. The March 16, 2016, written reprimand specifically warned Faison about insubordination and stated: [Y]ou received notification regarding your insubordinate behavior on February 22, 2016, when you hung up the pone on me after I asked you to come to my office for a meeting and on March 2, 2016 for refusing to meet with me for non-disciplinary reasons. * * * [Y]our gross insubordination [is] a serious breach of conduct that cannot be tolerated. Therefore, I am issuing you a written reprimand that is consistent with School Board Policy 4.9. Please be advised that any further failure on your part to perform to the standards established for the effective and productive performance of your job duties as a teacher will result in further disciplinary action, up to and including termination of your employment. Petitioner ultimately filed charges against Faison by Administrative Complaint dated October 11, 2017, that included charges of misconduct in office, incompetency, gross insubordination, willful neglect of duty, and violation of School Board Policy 4008. On November 7, 2017, the School Board took action to suspend Respondent for 10 days without pay. Respondent contested the reasons for suspension.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Broward County School Board enter a final order rescinding the 10-day suspension with back pay. DONE AND ENTERED this 6th day of July, 2018, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2018.
The Issue Whether Petitioner has cause to terminate Respondent's continuing contract of employment as a classroom teacher.
Findings Of Fact The School Board of Palm Beach County, Florida (School Board), is charged with the duty to operate, control, and supervise the public schools within Palm Beach County. Section 4(b), Article IX, Florida Constitution. Petitioner has been authorized to act on behalf of the School Board in this proceeding. The respective duties and responsibilities of the School Board and the Superintendent are set forth in Chapter 230, Florida Statutes. Respondent has been employed by the School Board as a classroom English teacher pursuant to a continuing contract since 1965. At all times pertinent to this proceeding Respondent taught high school English at BRCHS. On October 25, 1999, the then-serving Superintendent of Schools reassigned Respondent to an administrative position in the Division of Personnel Services, effective October 26, 1999. Respondent has not taught in the Palm Beach School District since his reassignment. The Classroom Teachers Association (CTA) is a union that represents members of the Palm Beach County School District’s instructional staff. Respondent has been a member of the CTA at all times pertinent to this proceeding. Section 231.29(1), Florida Statutes, requires each school district to establish procedures for assessing the performance of duties and responsibilities of certain employees, including classroom teachers with continuing contracts. The Florida Department of Education (DOE) must approve each school district's personnel assessment system. The School Board has adopted a personnel assessment system, described below, that has been approved by DOE. As required by Florida law, School District administrators evaluate the work performance of teachers at least once a year. The Classroom Teachers Assessment System (CTAS), the assessment system used by the Palm Beach County School District, requires that prior to any evaluation, a qualified administrator observe the teacher’s classroom performance for a minimum of twenty minutes, recording any noted strengths and identifying weaknesses that should be remediated. An observation may be recorded in a narrative form or in a summative form. Following the observation, the administrator completes the evaluation form, which requires that the teacher be rated in 16 skill areas. The rating for each skill area is a score of two for an acceptable area or a one for an area of concern (an area of deficiency). At the beginning of every school year, teachers receive a Teacher Evaluation Handbook (Handbook) that describes the evaluation form, criteria, and rating scale that Petitioner uses to evaluate the job performance of employees with continuing contracts or professional services contracts. The evaluation form lists a total of 16 skill areas under the following headings: "Instructional Process," "Professional Proficiencies," and "Professional Responsibilities" as follows: INSTRUCTIONAL PROCESS Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Communication: Verbal and Nonverbal PROFESSIONAL PROFICIENCIES Establishes an Appropriate Classroom Climate Demonstrates Knowledge of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Ability to Evaluate Instructional Needs Demonstrates Effective Written Communication Skills Develops and Maintains an Accurate Record Keeping System PROFESSIONAL RESPONSIBILITIES Demonstrates a Commitment to Growth Demonstrates Self Control Demonstrates Effective Working Relationship with Coworkers Demonstrates Effective Working Relationship with Parents Adheres to and Enforces School Policies Performs Duties as Assigned by the School Administration The Handbook provides criteria that explain each one of these categories on the evaluation form. Teachers who receive an unsatisfactory performance evaluation are placed on a 30-day school-site assistance plan. If the teacher’s performance has not sufficiently improved by the end of the 30 days, the teacher is thereafter placed on a 90-day district-level assistance plan. Prior to the end of the 90-day period, the teacher’s performance in the classroom is evaluated again. If that teaching performance is still rated unsatisfactory, the teacher can be recommended for dismissal. This process applies to both Professional Service Contract (PSC) teachers and Continuing Contract (CC) teachers. The CTAS has been incorporated by reference into the collective bargaining agreement (CBA) between the School District and the CTA. 1/ Article II, Section M of the CBA is titled Discipline of Employees (Progressive Discipline) and provides, in pertinent part, as follows: 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. * * * 7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. . . . Written Reprimand. . . . Suspension Without Pay. . . . Dismissal. . . . Diane Harris became the principal of BRCHS in August 1997, taking over for Norman Shearin. Prior to her appointment, Ms. Harris served as an administrator in the Area Office and was assigned to the instructional support team. Pursuant to her duties under the CTAS, Ms. Harris observed one of Respondent’s classes on October 23, 1997. She observed what she considered to be several areas of deficient performance. Ms. Harris subsequently met with Respondent to address these concerns and make suggestions on how he could improve his teaching performance. Respondent was not receptive to her comments. Respondent’s final evaluation for the 1997-98 school year was rated satisfactory overall. Ms. Harris testified, credibly, that she rated all the teachers that year as being satisfactory because she wanted to observe all teachers during her first year as principal so she could formulate a plan for the following year. The concerns noted during her October observation of the Respondent were never made a part of his final evaluation for 1997-98. Ms. Harris rated Respondent's performance as being satisfactory despite the fact that she was aware that Respondent’s review for the prior year (under Dr. Shearin) had been unsatisfactory. Every year, the BRCHS English Department takes students on a field trip to the Caldwell Theater to view a theatrical production. On November 4, 1998, Respondent’s first period English class was scheduled to go on that field trip. That morning, however, several of his students appeared at the school’s front office and complained to Ms. Harris that Respondent would not allow the entire class to go on the field trip because some students had thrown “spit wads” during class. Rather than punish the students who were responsible, Respondent inappropriately punished the whole class. Because half of the English Department was going on the field trip that day and half the next day (November 5, 1998), Ms. Harris arranged for Respondent’s students to go on the field trip on November 5, 1998. She was unable to meet with Respondent on November 4, 1998 because, when she went to look for him to inquire about his actions, he had already left on the bus with other students to go to the theater. When Ms. Harris was finally able to speak to Respondent either that day or the following day, Respondent accused her of preempting his absolute authority over his class. On November 6, 1998, Ms. Harris issued a memorandum to Respondent outlining her concerns about the field trip incident. In that memorandum, Ms. Harris also noted that she was concerned about the frequent number of disciplinary referrals for assistance from the deans Respondent would make on a daily basis. As a result of those concerns, Ms. Harris provided Respondent with a handout from the CTAS listing the performance criteria for Management of Student Conduct, which included implementing a discipline plan. Ms. Harris specifically directed Respondent to prepare such a written discipline plan and provide it to her by November 9, 1998. On November 17, 1998, Respondent provided to Ms. Harris a copy of a one-page typed document outlining eight rules of conduct which he handed out at the beginning of each school year to his students. On the copy provided to Ms. Harris, the Respondent noted that he also followed the student/teacher handbook. Attached to the document was a copy of a page from an outdated student/teacher handbook. On several occasions Ms. Harris informed Respondent that his discipline plan was inadequate. Thereafter, Ms. Harris consulted with Ms. Stafford, an assistant principal of BRCHS, and obtained a number of documents from the School District’s Professional Standards Office to aid Respondent in properly preparing a discipline plan. By memorandum dated December 18, 1998, Ms. Harris directed Respondent to provide her with a discipline plan by January 8, 1999. When a student is removed from a classroom as the result of misbehavior, he or she is sent to a supervised study area called the opportunity room. On November 24, 1998, Ms. Harris met with Respondent regarding the large volume of referrals he was issuing, which resulted in the students being referred to the opportunity room. At mid-year, Respondent had issued approximately 70 to 75 such referrals. By the end of the school year, Respondent had issued 146 such referrals. In addition to the number of referrals, Ms. Harris received complaints from parents that two particular students were being regularly referred to the opportunity room, that these two students received failing grades, that they were not given progress reports, and that their work was misplaced. Ms. Harris also received a complaint from a student that Respondent had sent the student to the opportunity room without giving the student a way to make up class work. Respondent requested another meeting and offered to justify the referrals he had made, but the meeting was never held. 2/ On December 4, 1998, Ms. Harris made an informal observation of Respondent’s first period class. Ms. Harris observed that the classroom setting was chaotic, students ignored Respondent, and there was no flow or continuity of instruction. All teachers are required to turn in weekly lesson plans reflecting objectives, materials, assessment tools, and activities. In January 1999, Respondent turned in lesson plans for the second term of English 10 and 11. His plans for English 11 were merely a duplicate of his plans for English 10. Subsequently, Ms. Harris repeatedly instructed Respondent to turn in appropriate lesson plans for English 11. Despite those clear instructions from Ms. Harris, Respondent did not turn in appropriate lesson plans for English 11. Ms. Harris decided to give Respondent a mid-year evaluation. The evidence presented by Petitioner established that Ms. Harris was justified in determining that a mid-year evaluation was appropriate. 3/ Ms. Harris assigned Dr. Robert Murley, an assistant principal at BRCHS, to perform a summative observation of Respondent on February 2, 1999. On the day Dr. Murley observed Respondent, Respondent was approximately five minutes late to class. At one point during the observation, Dr. Murley observed that more than half the class was not engaged in learning. The students were either talking or sleeping, or staring off into space, or looking out the window. Dr. Murley further observed Respondent talking above the class rather than getting them to pay attention. Dr. Murley observed the class for over an hour in the hope that things would get better, but they did not. During the 75 minutes that Dr. Murley observed Respondent’s class, he noted 42 times where the students were engaged in misconduct, with Respondent failing to address the misconduct in 12 instances. Respondent’s lessons failed to include meaningful learning and motivational techniques. Overall, Dr. Murley felt that there was very little learning going on and that Respondent was having a lot of difficulty keeping the class aware of what he was trying to teach them and trying to keep them engaged. On February 5, 1999, Dr. Murley met and reviewed his observations with Respondent. Respondent listened to some of the suggestions but not all of them. Respondent did not contest any of Dr. Murley’s observations on the summative form at that time. Subsequently, Dr. Murley attended a meeting with Respondent, his union representative, Ms. Harris, and Ms. Stafford. At that subsequent conference, Respondent resisted all suggestions and criticized Dr. Murley’s observations. As a result of Dr. Murley’s observation and Ms. Harris’ other concerns, Ms. Harris gave Respondent an unsatisfactory rating on the mid-year evaluation. On February 22, 1999, Ms. Harris met with Respondent and gave him the evaluation; Respondent signed the evaluation under protest. Respondent accused Ms. Harris and Ms. Stafford of “obsessive misanthropy.” This can only be construed as an attack on their professionalism and an accusation that they were biased against male professionals. On March 3, 1999, another conference was held, at which time Respondent presented his written rebuttal 4/ disputing each of Ms. Harris’ concerns from the February 22nd meeting. Respondent was not receptive to any suggestions, and the meeting itself was adversarial. By memorandum dated March 8, 1999, Ms. Harris notified Respondent that he was being placed on a 30-day school-site assistance plan, and that failure to improve his performance could result in further action. A copy of the written assistance plan was provided to Respondent at that time. Respondent was also provided with copies of letters and reports from students in Respondent’s classes regarding the climate in the classroom and Respondent’s evaluation of students. On March 10, 1999, Ms. Harris met with Respondent, together with Dr. Jeanne Burdsall, Director of Professional Standards, and Diane Curcio-Greaves, a specialist from the Professional Standards Department, regarding the school-site assistance plan. Dr. Burdsall and Ms. Curcio-Greaves developed a checklist for the 30-day plan. As part of the plan, Respondent was to observe another teacher’s class, turn in a discipline plan by March 22, 1999, and work with a Peer Assistance and Review (“PAR”) Consulting Teacher. Respondent and his union representative consented to his referral for PAR assistance. Follow-up meetings to review progress under the plan were scheduled for approximately every ten days. On or about March 15, 1999, Respondent provided a written response to Ms. Harris, contesting the charges against him. On March 17, 1999, Ms. Curcio-Greaves arranged for Respondent to observe a class at Atlantic High School. During that observation, Ms. Curcio-Greaves pointed out to Respondent certain teaching behaviors that she considered effective. Two areas were focused upon: management of student conduct and instructional organization and development. Respondent could have benefited from observing that class, but he resisted the efforts of Ms. Curcio-Greaves to help him improve his performance. On March 16, 1999, as part of the on-site school assistance plan, Virginia McGrath, a member of the Area Office’s Instructional Support Team and a certified CTAS evaluator, observed one of Respondent’s classes for approximately one hour and noted several areas for improvement. Specifically, she observed that Respondent did not review the assignment with the class, and that the students did not seem to understand the material being covered. Further, Respondent would not answer the questions of students who were unclear about the materials and/or the assignment and allowed too much down time. Ms. McGrath did not observe any actual teaching by Respondent during this observation. On March 18, 1999, Ms. Harris conducted a school-wide training session regarding the new CTAS evaluation system, which had been negotiated by the School District and the CTA and approved by DOE. Respondent attended the training. On March 19, 1999, pursuant to the terms of the on- site school assistance program, Ms. Harris again met with Ms. Curcio-Greaves and Respondent to review his progress under the on-site plan. During the meeting, Respondent complained that he should not be involved in the observation process, and he was not receptive to Ms. Curcio-Greaves’ observations. Instead, Respondent was critical of the teachers he observed and opined that Atlantic High School was a bad school overall. Pursuant to Respondent’s request at that meeting, Ms. Harris scheduled a follow-up meeting for March 23, 1999, to further discuss Respondent’s evaluation. On April 9, 1999, a follow-up meeting was held to review Respondent’s progress under the school assistance program. By this time, Respondent had still not provided the required classroom management plan; rather, he had only turned in a copy of the rule book. At the meeting, Respondent was informed of a professional standards workshop on presentation of subject matter and planning, to take place on April 27, 1999. As part of the school assistance plan, Respondent attended that workshop. Also pursuant to the school assistance plan, the PAR panel granted, on April 15, 1999, Respondent’s request for inclusion in the program, and assigned a PAR Consulting Teacher. On April 15, 1999, Dr. Burdsall attended an evaluation meeting with Respondent, Ms. Harris, and Mr. Matulaitis. During the meeting, Respondent stated that the principal was unprofessional, and commented that one particular student and that student’s father were “not too bright.” Respondent also stated (referring to Dr. Burdsall and Ms. Harris) that, “The ladies are unable to handle this, you live in a fluffy world,” and responded to a question by Dr. Burdsall with “no, my love, no.” Respondent was insulting to Ms. Harris and Dr. Burdsall and resisted the remedial assistance being provided to him. On April 16, 1999, pursuant to the CTA CBA, Ms. Harris notified Respondent that she would be observing his class during the week of April 19-23, 1999. Subsequently, Ms. Harris conducted the observation of Respondent’s classroom on April 22, 1999, and prepared a narrative report of her observations. Based upon her observations, Ms. Harris concluded that Respondent still did not have adequate control of his classroom environment and was exhibiting the same deficiencies as she had noted in the February 1999 evaluation. By memorandum dated April 26, 1999, Ms. Harris informed Respondent of her observations and, on April 30, 1999, personally met with him to discuss the matter further. Respondent did not agree with the assessment. Ms. Harris provided to Respondent a follow-up memorandum on May 5, 1999. By memorandum dated April 23, 1999, Mr. Matulaitis requested that the completion date for the school-site assistance plan be extended, as some items had not yet been completed. Upon review of the matter, Ms. Harris noted that most items had been completed without any noticeable improvement by Respondent. Specifically, Ms. Harris had still not received the discipline plan she had requested back in November, nor had Respondent provided to her revised lesson plans. Further, none of the observations of his classes showed any change in strategies in the classroom. In addition, Respondent became more adversarial and abusive at each follow-up meeting and consistently resisted suggestions. Ms. Harris denied Mr. Matulaitis’ request to extend the completion date for the school-site assistance plan. Dr. Mary Gray, a professor at Florida Atlantic University, is an expert in teacher evaluation who works with the school district as a consultant in teacher evaluation cases. Dr. Gray met Respondent on April 27, 1999, when he attended a workshop she conducted on planning for instruction and presentation of subject matter (including classroom management and questioning techniques) as part of his remediation program. Dr. Gray testified that Respondent appeared resistant to participating in the workshop. On May 4, 1999, Ms. Harris notified Respondent that she would provide transportation for him to go to another school and observe another teacher’s classroom as part of his remediation plan. Ms. Harris further informed Respondent that she would provide a substitute teacher for his classes that day. On that same date, Respondent signed the notification under protest and asked for the trip to be rescheduled. On May 5th and 6th, however, Respondent was absent from work. On May 6, 1999, Ms. Harris notified Respondent that his May 5, 1999, meeting to observe an ESOL (English for Speakers of Other Languages) teacher had been rescheduled for May 10, 1999, due to Respondent’s absence on May 5th. This was one of the last open items remaining on Respondent’s school-site assistance plan. By letter dated May 6, 1999, Ms. Harris requested then Superintendent of Schools, Dr. Joan P. Kowal, to place Respondent on a 90-day performance probation, because Respondent had completed the school-site assistance plan without making any improvement in the noted areas of deficiency. On May 11, 1999, Respondent received his year-end CTAS evaluation. The evaluation noted the same deficiencies as had been noted on the February evaluation. The evaluation rated Respondent as unsatisfactory overall, and noted that a 90-day district-level assistance plan would be implemented. By letter dated May 12, 1999, Superintendent Kowal formally advised Respondent that he had been placed on 90-day performance probation and that he would receive a Professional Development Plan (the district plan) to support remediation of the deficiencies. Also on May 13, 1999, Ms. Harris provided to Respondent copies of letters from students and one parent regarding the climate in Respondent’s classroom and Respondent’s failure to appropriately evaluate student needs. Ms. Harris testified that the student concerns were addressed in the form of a petition, and that she had never received such a document for any other teacher at BRCHS. Ms. Harris referred Respondent to specific sections in the school-site assistance plan for suggestions on improvement strategies in the noted areas of concern. On that same day, Ms. Harris also requested that Superintendent Kowal revise the district plan to delete the seventh area of concern (working relationships with parents) as a result of the disposition of a grievance Respondent had filed about his evaluation. Ms. Harris had been told by her supervisor that it would be more beneficial for Respondent to concentrate on the other six areas, which more directly affected Respondent’s instructional activities. Respondent’s May 1999 evaluation was also changed accordingly. On May 14, 1999, the ESOL teacher assigned to meet with Respondent pursuant to the school-site assistance plan reported to Ms. Harris that Respondent had been resistant to the ESOL teacher’s suggestions as to the use of ESOL strategies. At a meeting on May 19, 1999, Respondent was officially placed on a 90-day district plan and notified of his right to a deficiency hearing -- which he requested. At that meeting, a checklist for the district plan was developed. Everyone agreed to the plan and agreed that it complied with the CTA CBA. Neither Respondent nor the CTA objected to the fact that Respondent had been placed on the 30-day and 90-day programs. The deficiency hearing to review the 90-day district plan was conducted with Cheryl Alligood serving as the hearing officer. The hearing was held before Ms. Alligood, the principal, the union representative, and the teacher. The purpose of a deficiency hearing is for the union representative to come with the teacher and the principal to review what concerns there may have been and whether sufficient assistance is being provided to the teacher by the district plan. Respondent, who was represented by counsel at the deficiency hearing, asserted that his performance was not deficient and that Ms. Harris was “out to get him.” Subsequently, Ms. Alligood found sufficient reason to continue Respondent on the district plan. Respondent received notice of that determination on July 6, 1999. Pursuant to Respondent’s agreement, Dr. Burdsall arranged for Respondent to observe a Dwyer Award recipient or nominee. A Dwyer Award is given for excellence in teaching. Respondent did not keep his appointment that had been set up by Dr. Burdsall. The observation was rescheduled, but again, the Respondent did not show up. Respondent also failed to attend a workshop set up by the PAR teachers specifically for the purpose of helping him remediate his particular teaching deficiencies. Dr. Burdsall offered Respondent the opportunity to attend a different workshop. Again, he did not attend. During the 1998- 99 school year, several remedial workshops were recommended to Respondent to assist in his professional development that he did not take advantage of. On May 27, 1999 (about a week before the end of the school year), Dr. Gray observed Respondent’s teaching performance in the classroom, at which time she noted he was deficient in several areas. The most critical deficiency Dr. Gray noted was that Respondent was not performing at the minimal teaching level. Based on her observations, Dr. Gray did not consider Respondent to be a competent teacher. Following the observation, Dr. Gray met with Respondent to review the results of her observation and to offer constructive criticism. Respondent was defensive and clearly resented being involved in the observation/remediation process. Respondent angrily voiced that resentment to Dr. Gray. Respondent subsequently provided Ms. Harris with a written response to Dr. Gray’s observations, disagreeing with each one. Respondent’s district plan extended through the summer. Dr. Burdsall met with Respondent following the summer break and determined that Respondent had not done anything over the summer to try to help his remediation process. At the August 13, 1999, meeting, Dr. Burdsall, Ms. Harris, and Mr. Matulaitis agreed it would be beneficial for Respondent to attend a couple of workshops on management of student conduct and instructional strategies. In addition, it was decided that the PAR teacher would continue for the 1999-2000 school year. Dr. Burdsall testified that the meeting was unlike any other assistance review meetings she has had because of the adversarial, abusive attitudes of Respondent and his union representative. Dr. Burdsall was under the impression that Respondent was never going to remediate. On August 26, 1999, pursuant to the 90-day district plan, Tcherina Duncombe, a specialist in the Professional Standards Office, conducted an hour-long observation of Respondent’s classroom and prepared a narrative report of her observations. Ms. Duncombe determined that Respondent needed improvement in the same areas that had been of concern during the prior school year, including management of student conduct, instructional organization and development, and establishing an appropriate classroom climate. Ms. Duncombe observed that Respondent’s instruction that day was not organized and was ineffectual, and that his directions were unclear. Further, Respondent failed to discipline some students for talking in class and making inappropriate comments, but then would discipline others in an inappropriate manner. Ms. Duncombe subsequently discussed her findings and suggested improvement strategies with Respondent, but he did not appear to be receptive. During the one-hour review session Ms. Duncombe had with Respondent, Respondent spent most of the time making negative comments about the district plan and Ms. Harris. Based upon the information contained in the narrative, Ms. Harris determined that Respondent had not made any improvement in his classroom teaching performance. On September 9, 1999, Respondent provided a written response to Ms. Duncombe’s observations, taking issue with each point made by Ms. Duncombe. On September 18, 1999, Respondent was notified via certified mail that a second observation would take place during the week of September 21, 1999, by Ms. McGrath, as part of the district plan. At the same time, Respondent was informed that a previously scheduled meeting had been reset to September 21, 1999. Ms. McGrath conducted her second observation of Respondent on September 22, 1999. Again, Ms. McGrath did not observe any actual teaching, and Respondent again failed to review materials with the students and clarify any confusing assignments. Ms. McGrath also observed students talking in class (including the utterance of a couple obscenities) and passing notes. In addition, Respondent was inconsistent with requests for bathroom leaves. Further, Respondent had not implemented any of Ms. McGrath’s recommendations from the previous observation (there was no defined lesson and Respondent was not meeting the needs of all his students). After the second observation, Ms. McGrath was concerned about Respondent’s competency as a teacher. Based upon the information contained in Ms. McGrath’s summary of her observation, Ms. Harris determined that Respondent still had not made any improvement in his classroom teaching performance. Dr. Burdsall was present during a September 21, 1999, district plan meeting wherein the evaluations of Ms. Duncombe and Dr. Gray were reviewed. Respondent insulted Dr. Burdsall again. Dr. Burdsall testified that she had never had a teacher become abusive when she was trying to provide assistance. Rather than walk out of the meeting, Dr. Burdsall continued to try and provide assistance to Respondent. Despite Respondent’s attitude, Dr. Burdsall continued to make efforts to assist Respondent and get him to see other teachers. On October 4, 1999, Ms. Harris received a letter from a student concerning Respondent’s teaching methods. Ms. Harris testified that the complaints in the letter were consistent with the same pattern of deficiencies exhibited by Respondent on other occasions. Ms. Harris provided copies of the letter to Respondent and, on October 7, 1999, scheduled a brief meeting with him to discuss the letter. The meeting was held on October 8, 1999. At the meeting, Respondent was also given a copy of an observation summary conducted by Dr. Penny Beers, the curriculum specialist for the School Board's language arts program, discussed infra. Further, Ms. Harris notified Respondent that she would be observing his classroom the week of October 11, 1999. On October 5, 1999, Respondent, through his counsel, filed a Petition for Writ of Prohibition in the Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida. In that action, Respondent sought the issuance of a writ of prohibition directing the School Board to cease the 90-day district-level remediation program and restraining the School Board from treating Respondent as a PSC teacher. Respondent argued that, as a CC teacher under Section 231.36, Florida Statutes, he could only be dismissed for immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Respondent further argued that the 90-day district plan could not be applied to CC teachers. By order dated November 1, 1999, following oral argument on the issue, the Circuit Court denied Respondent’s Petition. On October 6, 1999, Dr. Beers conducted an observation of Respondent’s classroom as part of the district plan. Although Dr. Beers made several commendations in her observation summary, she made even more recommendations for improvement. Based upon her one-hour observation, Dr. Beers felt that Respondent had not demonstrated his competence as a teacher because she saw very little instructional time used during that one-hour period. Specifically, Respondent engaged the students in actual instruction for only ten minutes of the one-hour period. She also noted that Respondent was inconsistent in his meting out of discipline and was not very aware of what the students were doing (which was referred to as lacking “with-it- ness”). Dr. Beers wrote up a summary of her observation in narrative form, and included commendations as well as recommendations for improvement. From those recommendations, Ms. Harris determined that Respondent had still not made any progress toward remediating his teaching deficiencies. Ms. Harris observed Respondent’s class on October 12, 1999, and prepared a narrative summary. Respondent’s classroom performance at that time was consistent with previous observations. Ms. Harris did not note any improvement. On October 15, 1999, Ms. Harris prepared an evaluation for Respondent, rating his performance as being unsatisfactory. The unsatisfactory evaluation was based on Respondent’s failure to remediate any of the previously noted six areas of concern and his lack of effort in that regard. Ms. Harris also notified Superintendent Kowal that, although Respondent was provided 90 days of assistance, his performance deficiencies had not been corrected to a sufficient degree to warrant a satisfactory evaluation. Dr. Kowal in turn notified Respondent that she would recommend to the School Board Respondent’s dismissal effective 15 days from the November 4, 1999, School Board meeting. At the end of the 1996-97 school year, Respondent erroneously recorded that all but one student in a class had failed the final examination. The incorrect grades appeared on the final report cards for the 1996-97 school year. On September 17, 1997, a pre-disciplinary hearing was held to determine whether further action should be taken. At that pre- disciplinary hearing, it was established that the failing grades were the result of Respondent's record-keeping errors and that no further action would be taken against him after Respondent changed the erroneous grades. Respondent repeatedly failed to maintain adequate records of grades, made errors in reporting grades, and misplaced students' work. Count II alleged that Respondent refused to submit the end-of-year checklist prior to summer break for the 1998/99 school year. The evidence failed to establish that allegation. Count II also alleged that Respondent falsified a disciplinary referral by indicating on the referral record that he had spoken to the student's parent when, in fact, he had not done so. Respondent admitted that he had not spoken directly with the parent, but he testified, credibly, that he had left a message on the parent's answering machine and did not intend to mislead anyone by the referral record. Count II alleged that Respondent meted out inappropriate, unwarranted, and unequal punishment to students, and that he used grades and denial of make-up work opportunities as methods of punishment. Respondent meted out inappropriate, unwarranted, and unequal punishment to students. Petitioner did not establish that Respondent used grades and denial of make-up work opportunities as methods of punishment. As alleged in Count III, Petitioner established that Respondent was guilty of insubordination by his continuing failure to provide Ms. Harris with lesson plans and with a discipline plan. In explaining to the arbitrator who heard one of his grievances, Respondent testified that he did not do a discipline because he did not do "diddly" tasks. The remaining allegations of insubordination or willful neglect of duty set forth in Count III were not established by Petitioner. Petitioner established that each observation of Respondent's performance at issue in this proceeding was pursuant to and consistent with its established evaluation process. Each person who formally observed Respondent's classroom performance was appropriately trained and objectively reported their observations, which were factually based. Petitioner further established that each performance evaluation at issue in this proceeding was pursuant to and consistent with its established evaluation process. The various findings of unsatisfactory performance were justified by documented observations as required by the evaluation process. The 90-day district plan provided Respondent with appropriate assistance to help him correct his teaching deficiencies. Petitioner clearly established that Respondent repeatedly resisted efforts to help him. Respondent failed to remediate his deficiencies. This failure should be attributed more to a negative attitude than a lack of ability. At the March 29, 2000, School Board meeting, the Superintendent of Schools submitted a written recommendation that Respondent be dismissed from his CC teaching position with the School District at the end of the 1999-2000 school year, effective May 31, 2000. Respondent and his attorney were given an opportunity to be heard regarding the Superintendent’s recommendation. The School Board voted in favor of the Superintendent's recommendation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further RECOMMENDED that the final order terminate Respondent’s continuing contract of employment effective at the end of the 1999-2000 school year. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001.
The Issue The issue in this case is whether to impose sanctions against Respondent, Brooke Braly, up to, and including, revocation of her Educator’s Certificate.
Findings Of Fact The Commissioner is responsible for monitoring each person who holds a Florida Educator Certificate and who is working in any school district within the State. Part and parcel of the Commissioner’s duties is the determination of whether any teacher violated any of the Principles of Professional Conduct for the Education Profession. At all times relevant hereto, Ms. Braly held Florida Educator Certificate No. 1106771, covering the areas of elementary education and English for speakers of other languages. The certificate is valid through June 30, 2021. Ms. Braly is employed as a teacher in the Volusia County School System, teaching at the School in the area of Modified ESE with Varying Exceptionalities. Her students were those with physical and/or mental disabilities which resulted in learning difficulties. Ms. Braly had served in that position for seven years as of the date of final hearing, including the 2017-2018 school year. An incident occurred at the School on December 5, 2016, i.e., the 2016-2017 school year, involving the Student. Based on that incident, the Commissioner issued an Administrative Complaint on November 21, 2017 (some 10 months later), which contained the following allegations: On or about December 5, 2017, [Ms. Braly] failed to notify school administrators after she confiscated a BB gun from a student at the beginning of the school day. [Ms. Braly] also failed to properly secure the BB gun to prevent the student from regaining possession of it while still on school property. The Salient Facts From the evidence presented, it is clear that on December 5, 2016, the Student approached Ms. Braly at the beginning of the school day. The Student told Ms. Braly that he had inadvertently failed to remove his BB/airsoft pistol from his backpack before leaving for school that morning. He asked her what he should do, and Ms. Braly took the gun from him to secure it for the day. At no time was she worried that the Student had intentions of using the BB gun or that it was a serious problem. In fact, Ms. Braly did not even believe it was a BB gun, but thought it was a plastic toy gun. At the end of the day, the Student took the gun home with him. As the Student was exiting the school bus at his stop that afternoon, another student sitting on the bus saw the BB gun, which the Student had stuck into his waistband under his shirt. The Student’s shirt was lifted for some reason and the other student spotted the gun. That student went home and immediately sent an email to several School administrators to report what he had seen. The administrators reviewed surveillance videos from the bus and identified the Student as the person carrying the gun. An investigation ensued and the Administrative Complaint was filed. The less clear and/or less persuasive “facts” of this case are set forth below. The Gun The Commissioner presented a picture of a BB gun at final hearing which was purported to be the same gun Ms. Braly had confiscated from the Student on December 5, 2016. The black and white picture shows a replica Smith & Wesson handgun of small to average size. Ms. Braly says that the gun depicted in the picture is not the gun she took from the Student. The Student’s father brought a handgun to final hearing that he said was the gun at issue. It was plastic, lightweight, and tan and black in color. There was a clip (presumably for holding BBs) that could slide into the handle of the gun. The father demonstrated how to insert the clip and how to “cock” the gun by sliding back the top portion. That action would engage a spring that would release once the trigger was pulled, i.e., it was a spring-fired pistol, not a recoil action weapon. According to the Student, the gun fired plastic pellets rather than BBs. Ms. Braly, who only saw the gun for a few moments on the morning of December 5, 2016, remembers it to be black with an orange tip, unlike the gun produced at final hearing. At some point, the Student was asked to identify the gun from a picture depicting several different handguns. The Student pointed out to an investigator which of the depicted guns looked most like his BB pistol. The photographic line-up was not offered or admitted into evidence, so no finding is made as to what it may have shown, vis-à-vis what the gun looked like. At the final hearing, the Student’s father acknowledged that he had previously told School administrators he had destroyed his son’s gun back in December when the event occurred. The gun he produced at final hearing was obviously not destroyed; in fact, it looked very new and barely used. The Student said the gun produced at hearing was the same gun he gave to Ms. Braly on December 5, 2016. Mr. Starin, an investigator for the Volusia County School District, was tasked with looking into the incident. He did not speak to the Student’s parents nor did he attempt to locate the gun (other than having the Student identify what the gun looked like from the pictorial lineup). The most persuasive evidence is that the gun given to Ms. Braly on December 5, 2016, was the same as or similar to the one depicted in the Commissioner’s exhibit and proffered at final hearing. It was very light and obviously a toy, but was designed to resemble a real gun. Though it looked somewhat like a real weapon from afar, it is hard to believe anyone who held the gun or saw it up close would think it real or capable of causing serious harm to a person. December 5, 2016 As the Student was walking to his bus stop, he told his sister he had forgotten to remove the BB gun from his backpack after carrying it with him to the park the night before. His sister advised the Student to give the gun to his teacher so as not to get in trouble at school. Upon arrival at the School, the Student immediately approached Ms. Braly, who he trusted and believed would help him do what was most appropriate in this situation. When no other students were nearby, the Student told her about the gun. Ms. Braly took the gun and placed it in her office in a desk drawer. The Student remembers her placing the gun in a cardboard soda can box. Ms. Braly remembers just placing it in a desk drawer. It is patently obvious by his actions that the Student had no intentions of displaying the gun at school for any purpose. He very intentionally tried to diffuse any danger or unease that might have arisen due to his mistake. Ms. Braly took the Student’s actions and demeanor into account when deciding what to do. Ms. Braly thought the toy gun would be safe in her locked office as that was where she kept her purse and car keys during the school day. Normally no one had access to the office during the day, except that construction was going on and some of the workers did have access to the office. Ms. Braly did not consider those workers a threat to steal anything or to rifle through her desk during the day. She also did not consider the toy gun worthy of anyone’s interest. She believed her response to the situation was reasonable, based on all the circumstances and her knowledge of the Student. At the end of the day, the Student retrieved the gun. How that occurred is not entirely clear from the evidence. The Student says that he asked Ms. Braly at the end of the day if he could get his gun. She was very busy at the time and just told him, “yes,” so he went into the office and retrieved it. He remembers Ms. Braly telling him to put it in his backpack so that no one else would see it. He did so, but then transferred it to his waistband later. An ESE co-teacher with Ms. Braly remembers Ms. Braly being completely absorbed in the preparation of an Individual Education Plan for another student that afternoon. The co-teacher had instructed students not to bother Ms. Braly and does not remember the Student or anyone else talking to Ms. Braly that afternoon. Ms. Braly does not remember being asked by the Student whether he could get his gun from the office. She simply did not even think about the gun after acquiring it that morning. To her, the gun was a toy and did not warrant much attention. Sometime the next day, she realized the gun was gone and surmised that the construction workers must have left the door open so that the Student was able to get his gun. She did not explain why she thought the Student – rather than the workers – had taken the gun from her office. At any rate, the Student retrieved his gun before he left for home. As he was exiting the school bus, the other student noticed the gun in his waistband and notified School administrators. That action is very understandable considering the school shootings across the nation in recent times. December 6, 2016 Once the school administrators got word about the gun and identified the Student, they contacted Ms. Braly. The School resource officer, Deputy Abato, went to Ms. Braly’s class and asked to talk to her. They went into her office, away from the students, and she was asked about the gun. The conversation lasted only a few moments. Deputy Abato was only concerned with whether the gun was real or not. Convinced it was not, he did not pursue the matter. Later, Ms. Braly was asked by assistant principal Feltner to write a statement concerning the incident. Her statement reiterated what had happened, i.e., the Student showed her the gun, she identified it as a toy and placed it in her office, and the Student later retrieved it. Again, how she knew that the Student retrieved the gun rather than someone else getting it is not clear. Deputy Abato’s statement from that same day mirrored Ms. Braly’s statement. Deputy Abato said that if a student pulled a gun on him that looked like the one in the picture offered into evidence, he would order the student to put the gun down. If they did not do so, he would likely shoot them. Whether the gun the Student had was like the picture is not clearly established in the record. The best evidence is that the gun could have looked like that, but even that evidence is neither clear nor convincing. The gist of the Commissioner’s argument in this case is that: IF an armed deputy saw the Student with the gun, and IF the deputy ordered him to put it down, BUT the student did not immediately comply, THEN the deputy MIGHT be inclined to fire on the student. Though completely plausible in general terms, that eventuality seems very unlikely under the facts of this case. Later Developments On December 15, 2016, Investigator Starin issued an “Investigative Summary” describing his findings after conducting a brief investigation. The report did little more than recite what other people had said. Mr. Starin concluded that the Student brought the gun to school, gave it to his teacher, and retrieved it at the end of the day. The summary provides little substantive information and makes no recommendation or assertion of wrongdoing by Ms. Braly. The investigator only talked to three people as part of his minimal investigation into the incident on December 5, 2016: Ms. Braly; Deputy Abato, who had only secondhand knowledge; and the Student. It is remarkable that Mr. Starin did not interview Ms. Braly’s co-teacher or her paraprofessional, both of whom were in the classroom that day, or the Student’s parents. The overall level of the investigation is consistent with the degree of seriousness of the events. That is, there was a slight breach of protocol, but no probability of harm to the Student or others at the School. The Board decided that the incident nonetheless warranted some discipline. The School Board notified Ms. Braly that a letter of reprimand would be issued and she would be suspended for three days without pay. Although this was a fairly low level of discipline, Ms. Braly has challenged it; the matter is currently in arbitration. Notwithstanding the discipline imposed, the Board has re-hired Ms. Braly for the 2018-2019 school year in the same position she has held for the past seven years. In fact, she has continued teaching at the School since the December 5, 2016, incident. She is an effective teacher and has not had any other disciplinary actions against her, and the School recognizes her as an effective ESE teacher. The Commissioner also seeks to discipline Ms. Braly, noting that she failed to report the incident and did not adequately secure the toy gun. Both of these allegations are true, whether they violate any particular policy or not. The Commissioner proposes a letter of reprimand, suspension of Ms. Braly’s Educator Certificate for six months, and two years of probation. However, based on the best evidence available, Ms. Braly’s conduct was both reasonable and essentially benign. If any sanction against Ms. Braly was warranted, it should be minimal at worst.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint filed against Respondent, Brooke Braly, in its entirety. DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2018. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Respondent violated section 1012.795, Florida Statutes (2015),1/ and implementing administrative rules, as charged in the Administrative Complaint, and if so, what is the appropriate sanction.
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educator Certificates who are accused of violating section 1012.795 and related rules. At all times material to the allegations in this case, Respondent held Florida Educator’s Certificate 701877. The certificate covered the areas of elementary education, English for Speakers of Other Languages (ESOL), and world language- Spanish. The certificate was valid through June 30, 2015. Respondent has been a teacher for over 20 years. At all times material to this proceeding, Respondent was employed by the Osceola County School District (OCSD) as a teacher at Michigan Avenue Elementary School (Elementary School). The allegations against Respondent arise from Respondent transporting an Elementary School student home after school one day. Tammy Cope-Otterson is the chief human resource officer for the OCSD. OCSD has a policy that requires school personnel to have approval from the principal before transporting a student. OCSD has a rule that requires written consent from a parent before a student can be transported in a private vehicle. Respondent admitted that he was aware that it was against school district rule to transport students in a personal vehicle without permission from the school district or the student’s parents. During the 2008-2009 school year, K.N. was a student in Respondent’s second-grade class at the Elementary School. While K.N. was in Respondent’s class, M.N. (K.N.’s mother) expressed that she was not fond of Respondent’s teaching methods. During the 2010-2011 school year, K.N. was ten years old and in fourth grade at the Elementary School. Following the completion of the 2010-2011 regular school year, K.N. enrolled in the Elementary School summer enrichment program, called the Spirit Program. Respondent served as a physical education instructor for the Spirit Program. When M.N.’s work hours changed, she and K.N. walked to and from the Elementary School to establish K.N.’s daily route. K.N. was allowed to walk or ride her bike to the Elementary School. M.N and K.N. lived on 10th Street, approximately 15 blocks from the Elementary School. On July 6, 2011, K.N. started to ride her bike to the Elementary School. During the ride, she noticed that a tire was becoming flat. K.N. stopped at a local convenience store and attempted to put air in the tire, to no avail. She walked the rest of the way to the Elementary School, parked her bike in the bike rack, and left a voice message for M.N. that she had arrived at the Elementary School. After the Spirit Program ended for the day on July 6, K.N. left her bike at school and started walking home via the established route. K.N. walked to the corner of Michigan and 10th Street and crossed over Michigan to be on the south side of 10th Street. Because it was a hot day, K.N. rested in some shade, a little south of the corner. Respondent stopped his car close to K.N. Respondent used his authoritative teacher voice and told K.N. to get in the car. K.N. got into Respondent’s car. Respondent admitted that K.N. got into his private car. He then drove a block south on Michigan Avenue, turned west on 11th Street, drove two blocks, turned right on Indiana Avenue, drove two blocks, turned east on 9th Street, drove one block, turned south on Illinois Avenue and stopped at the corner of Illinois Avenue and 10th Street. K.N. got out of Respondent’s car and walked to her home on 10th Street. Respondent testified that he wanted to let K.N. out on her home’s (north) side of the street so she could use the sidewalk to safely get home. There was no sidewalk on the north side of 10th street. K.N. credibly testified that as Respondent was driving her around, he placed his hand on her left thigh and rubbed it. K.N. was “upset,” “very uncomfortable,” and “wanted to crawl out of [her] own skin.” K.N. also credibly testified that Respondent asked if she wanted to go for ice cream, which she declined. Later that same day, Respondent was questioned about whether he had any interaction with K.N. after school on July 6. Initially Respondent denied any interaction with K.N., but later admitted that he had picked K.N. up and taken her home. Respondent did not take K.N. home, but merely dropped her off down the street from her home. Respondent’s selective memory about the events of July 6 lessens his credibility and his testimony is deemed unreliable. Respondent was arrested and criminally charged. While he awaited his court date, OCSD initially suspended and later terminated Respondent’s employment. There was extensive media coverage. Respondent was acquitted or found not guilty in the criminal matters. PRIOR CONDUCT On November 10, 2000, a Final Order was entered by the Education Practices Commission of the State of Florida (EPC) involving Respondent. Respondent was alleged to have allowed an ineligible player to participate in a soccer game. Respondent did not contest the allegations and entered a Settlement Agreement that was accepted by the EPC. Respondent agreed to be reprimanded, placed on probation for one year, refrain from violating any laws, fully comply with all district school board regulations, rules and State Board of Education rule 6B-1.006, pay $150 to defray the costs of his monitoring while on probation, and satisfactorily perform his assigned duties. The allegations in the 2000 matter are not similar to the allegations in the instant case, were resolved in 2000, and Respondent successfully completed his probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent violated sections 1012.795(1)(g) and (j), and rule 6A-10.081(3)(a), and that he did not violate section 1012.795(1)(d), and rule 6A-10.081(3)(e). It is further RECOMMENDED that the Education Practices Commission suspend Respondent’s educator certificate for five years, followed by five years of probation. The Education Practices Commission shall establish the terms and conditions of Respondent’s suspension and probation, which may include the cost of monitoring the suspension and probation. DONE AND ENTERED this 17th day of December, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December,2015.
