The Issue Whether just cause exists for Petitioner to terminate Respondent's employment as a teacher.
Findings Of Fact Based on the parties' stipulations and the competent substantial evidence adduced at the final hearing, the following findings of fact are made: The Parties Petitioner, Broward County School Board, is charged with the duty to operate, control, and supervise free public schools in Broward County pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes. Respondent has been employed by the District as a physical education teacher since 2004. His last teaching assignment was as a physical education teacher at Crystal Lakes Middle School in Pompano Beach, Florida. Administrative Charges The alleged conduct giving rise to this proceeding occurred on or about May 18, 2018. The Administrative Complaint alleges that on that day, Respondent did not fully cover his early morning duty in the school cafeteria, did not fully attend his assigned homeroom, and did not attend his first period class, thereby leaving his students unsupervised for part of those periods; and reported to work under the influence of controlled substances——specifically, alcohol and cocaine. As a result of this alleged conduct, Petitioner has charged Respondent, in the Administrative Complaint, with violating Florida Administrative Code Rule 6A-5.056(2), (3), (4), and (5), and specified provisions of school board policies 2400, 4008, and 4.9, discussed in greater detail below. Events Giving Rise to this Proceeding On the morning of May 18, 2018, Respondent reported to work under the influence of alcohol and cocaine, both of which are defined as "controlled substances" by school board policy. As a result, Respondent did not fully cover his early morning cafeteria duty, did not fully attend his assigned homeroom, and did not attend his first period class. A fellow physical education teacher, Cindi Ancona, was forced to cover Respondent's first period class. During the portions of the periods in which Respondent was not present in his classroom and in which Ancona was not covering his class, his students were left unsupervised. Ancona saw Respondent at the beginning of second period. When she questioned Respondent regarding his whereabouts during first period, she noticed that he appeared confused and off— balance and that his eyes were glassy, so she sent a text message to Sabine Phillips, the Principal at Crystal Lake Middle School, regarding Respondent's demeanor and appearance. Phillips and Assistant Principal Ben Reeves responded to Ancona's text message. Reeves entered the boys' locker room and found Respondent lying down in his office outside of the locker room. Phillips then entered the locker room and told Respondent that he needed to go to the office with her and Reeves. In the course of questioning Respondent about where he had been during his first period class, Phillips surmised, and informed Respondent that she had reasonable suspicion, that he was under the influence of controlled substances. Phillips contacted the District's Special Investigative Unit to request that Respondent be subjected to testing to determine whether he was under the influence of controlled substances. Phillips followed the designated procedures, which entailed completing and transmitting a completed Incident Report Form to the designated District personnel. The Risk Management Department determined that the requested testing was warranted and transmitted an Anti—Drug Program Passport to Phillips, who delivered it to Respondent. The Anti—Drug Passport informed Respondent that he would be subjected to controlled substances testing, and that the testing would be performed at Crystal Lakes Middle School. Respondent consented to the drug and alcohol testing. The Risk Management Department sent an employee health testing collector to Crystal Lake Middle School, where she conducted a breath alcohol and urine test on Respondent. The breath alcohol testing indicated that Respondent had blood alcohol levels of .101 and .095, both of which exceed the blood alcohol level of .04 that Petitioner has adopted as the threshold for being under the influence of alcohol. Petitioner's third—party contractor confirmed that Respondent had a blood alcohol level of .095 at the time he was tested. Julianne Gilmore, an environmental health testing specialist with the District's Risk Management Department, contacted Phillips and Respondent, notifying them both that Respondent was being placed on Administrative Reassignment and was to remain at home——i.e., not report to work——pending the result of the drug testing. This informal contact was followed by a letter dated May 21, 2018, confirming that Respondent had been placed on Administrative Reassignment and directing him to stay home pending further notice.1/ Gilmore also advised Respondent of the availability of the District's Employee Assistance Program ("EAP"), participation in which was not mandatory.2/ The results of Respondent's drug test were received by the Risk Management Department on or about June 1, 2018. Respondent tested positive for cocaine. Respondent does not dispute that he was under the influence of alcohol and cocaine while at school on May 18, 2018, and also does not dispute accuracy of the results of the blood alcohol and drug tests. Upon receiving the results of Respondent's drug test, it was determined3/ that Respondent's employment with the District should be terminated, notwithstanding that the next step in sequential progressive disciplinary process ordinarily would be suspension. A significant consideration in this decision was that Respondent had left his students unsupervised, placing their safety at risk. No evidence was presented that the students in Respondent's class were actually physically or psychologically injured or harmed as a result of Respondent being absent from his classroom on May 18, 2018. Prior Discipline Petitioner has a policy (Policy 4.9, discussed below) of imposing discipline in a progressive manner, which means that discipline typically is imposed in sequential steps in order to afford the employee the opportunity to correct his/her conduct and performance before he/she is suspended or terminated. The progressive discipline policy authorizes sequential disciplinary steps to be skipped for sufficiently severe misconduct. Petitioner previously has disciplined Respondent. On April 21, 2016, Petitioner issued a Summary of Conference memo, memorializing a conference in which Respondent was verbally admonished for having briefly left the students in his class unattended while he took an injured student to the physical education office to tend to his injury, during which time some of the students physically assaulted other students in the class. On February 10, 2017, Petitioner issued a Verbal Reprimand to Respondent, reprimanding him for being tardy to, and absent from, work without following the proper protocol for entering an absence. On December 1, 2017, Petitioner issued a Written Reprimand to Respondent, reprimanding him for continuing to be tardy to, and absent from, work without following the proper protocol for entering an absence. On February 14, 2018, Petitioner issued another Written Reprimand to Respondent, reprimanding him for consistently failing to follow absence/tardy—reporting procedures, resulting in his students being left unsupervised. He was informed that if he again failed to adhere to the appropriate procedure, he would be subject to further discipline, including possible termination of his employment. Other Key Considerations in this Proceeding Respondent was forthright in admitting that he suffers from a substance abuse problem. In 2016, Respondent sought help for his substance abuse issue through the District's EAP program at Phillips' suggestion, but did not complete the program——in part because he did not find its methods helpful in dealing with his problem, and in part because he believed that he could overcome his problem on his own as he always had done in his life. Respondent has come to realize that he cannot overcome his substance abuse problem on his own and that there is no shame in asking others for help in dealing with his problem. To that end, Respondent participated in, and has completed, the Evolution substance abuse program, which consisted of counseling sessions three to four days a week, for a three—to— four—month period, and attending therapy classes and meetings each week. As a condition of participation in Evolution, Respondent was subject to random substance abuse testing. He did not test positive for alcohol or drug use during his participation in the program. The spiritual counseling and substance abuse trigger counseling that Respondent received in the Evolution program have resonated with him and have helped him successfully address his substance abuse problem.4/ In order to avoid backsliding, Respondent remains in weekly contact with one of his therapists at Evolution, and attends meetings three to four times a week, to place himself in an environment that enables and fosters his success in fighting his substance abuse problem. Since commencing Evolution, Respondent has not engaged in alcohol or drug use. Respondent expressed remorse at his behavior and poor judgment at having reported to work under the influence of controlled substances on May 18, 2018. He testified that he did so because he previously had been reprimanded for being absent, and was concerned about missing more school. He recognized that his choice to go to school in that condition was "bad thinking at the time." Respondent credibly testified that he greatly enjoys teaching and that he chose teaching as a career because he loves working with kids, relates well to them, and believes he can help them. His colleague, Tyrell Dozier, testified that Respondent gets along well with his students and is a caring, effective teacher. Findings of Ultimate Fact As noted above, the Administrative Complaint charges Respondent with having violated State Department of Education rules and specified school board policies. Specifically, Petitioner has charged Respondent, pursuant to rule 6A—5.056, with misconduct in office, incompetency, gross insubordination, and willful neglect of duty. Petitioner also has charged Respondent with violating school board policies 2400(1) and (3); 4008 B.1., 3., and 8. and certain provisions of Policy 4.9. Whether the charged offenses constitute violations of the applicable rules and policies is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985)(whether there was a deviation from the standard of conduct is not a conclusion of law, but instead is an ultimate fact); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether a particular action constitutes a violation of a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, and policies is a question of ultimate fact). Based on the foregoing, it is found, as a matter of ultimate fact, that Respondent violated some, but not all, of the rules and school board policies charged in the Administrative Complaint. By engaging in the conduct addressed above, Respondent committed misconduct in office under rule 6A—5.056(2), which includes violating Florida Administrative Code Rule 6A— 10.081(2)(a), by having left his students unsupervised. By engaging in the conduct addressed above, Respondent engaged in conduct constituting incompetency under rule 6A—5.056(3). By engaging in the conduct addressed above, Respondent engaged in conduct constituting gross insubordination under rule 6A—5.056(4). By engaging in the conduct discussed above, Respondent engaged in conduct constituting willful neglect of duty under rule 6A—5.056(5). Respondent violated Policy 2400(1) by reporting to work while under the influence of controlled substances. However, no evidence was presented that Respondent was in possession of, or used, a controlled substance while on school board property or at a school—sponsored activity. Rather, the evidence establishes that Respondent consumed alcohol and used cocaine in a social setting the night before he reported to school on May 18, 2018. Therefore, the evidence does not establish that Respondent violated Policy 2400(3), as charged in the Administrative Complaint. Policy 4008, subsections (B)1. and 8., requires school board employees to comply with State Board of Education rules and school board policies. As discussed above, the evidence shows that Respondent violated rule 6A—5.056(2), (3), (4), and (5), and rule 6A—10.081(2)(a). In violating these rules, Respondent violated Policy 4008, subsections (B)1. and 8. However, the evidence does not establish that Respondent violated Policy 4008B, subsection 3., as charged in the Administrative Complaint. This policy imposes on instructional personnel the duty to "Infuse in the classroom, the District's adopted Character Education Traits of Respect, Honesty, Kindness, Self—control, Tolerance, Cooperation, Responsibility and Citizenship." While Respondent's conduct in reporting to school under the influence of controlled substances on May 18, 2018, may not have constituted self—control or respect for his duties as a teacher on that specific day, no evidence was presented regarding Respondent's behavior in the classroom—— whether on that day or on any other day. To the contrary, as discussed above, the evidence established that Respondent is a caring and effective teacher in dealing with his students. Accordingly, it is determined that Respondent did not violate Policy 4008, subsection B.3. The evidence establishes that Respondent violated Policy 4008(C), which requires instructional personnel to be on duty for a minimum of 7.5 hours on an instructional day. However, the evidence does not establish that Respondent violated the provision in Policy 4008, "Miscellaneous" section, which states that "all members of the instructional staff shall be expected to teach a full schedule of classes, unless prior approval from the area superintendent or superintendent is obtained." Policy 4008 establishes the overarching responsibilities and duties of Principals and instructional personnel in the context of performing their employment contracts. In this context, the "full schedule of classes" provision refers to a teacher's instructional schedule assignment for the school year rather than a specific per—hour requirement. In fact, to read this provision as urged in the Administrative Complaint would render it redundant to the statement (also in the "Miscellaneous" section) that "instructional personnel must be on duty a minimum of seven and one—half hours (7 1/2) hours daily. The Administrative Complaint also charges Respondent with having violated the District's progressive discipline policy, Policy 4.9. As more fully discussed below, it is found that Respondent that did not violate this policy. Based on the foregoing, it is found, as an ultimate fact, that although Respondent violated the rule and many of the school board policies charged in the Administrative Complaint, under the progressive discipline policy set forth in Policy 4.9, the appropriate penalty that should be imposed on Respondent in this case is suspension without pay for the entire period during which he has been reassigned from the classroom. Additionally, Respondent should be required to submit to random drug and alcohol testing, at his personal expense, as a condition of his continued employment by Petitioner.5/ This penalty is appropriate based on the fact that Respondent has not previously been subject to suspension without pay under the progressive discipline policy, and takes into account several relevant considerations: specifically, that Respondent has a substance abuse problem for which he actively sought——and finally has been able to obtain——real, effective help in overcoming; that he has an approximately 14—year employment history with Petitioner that only, in the last two years, entailed discipline as the result of conduct that was caused by his substance abuse problem; that he is remorseful, understands that he made poor choices, and has obtained the counseling and therapy he needs in order to correct his performance problems through overcoming his substance abuse problem; that he is a caring and effective teacher who loves children and enjoys his teaching job; and, importantly, that no students were injured or otherwise harmed by Respondent's conduct on May 18, 2018. This penalty also is sufficiently severe to deter Respondent from committing future violations of rules and school board policies, and sends the message that this is truly his last chance.
Conclusions For Petitioner: Douglas G. Griffin, Esquire Broward County School Board Office of the General Counsel 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 For Respondent: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order suspending Respondent from his teaching position without pay commencing on the date on which he was reassigned from the classroom; reinstating Respondent to his teaching position; and requiring Respondent to submit to random drug and alcohol testing, at his personal expense, as a condition of his continued employment. DONE AND ENTERED this 17th day of July, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2018.
The Issue Whether Maria E. Tuma, a teacher in the Dade County School System, has been grossly insubordinate or has willfully neglected her duties as a teacher so that she should be dismissed from employment by the School Board of Dade County?
Findings Of Fact The Parties Petitioner, The School Board of Dade County, is the authority that operates, controls, and supervises all free public schools in the Dade County School District, "[i]n accordance with the provisions of s. (4) (b) of Article IX of the State Constitution ...". Section 230.03(2), F.S. Respondent, Maria E. Tuma has been employed by the School Board of Dade County for 24 years. She presently holds a continuing contract of employment. Since 1983, Ms. Tuma has been employed at Naranja Elementary School, Air Base Elementary School, Palm Lakes Elementary School and Ojus Elementary School. Ms. Tuma possesses many of the talents of a good teacher as evidenced by the myriad awards her art students have won and the numerous commendations for teaching art she has received over the years. But beginning in 1983 with her employment at Naranja and until and through a leave of absence commenced in 1995 while employed at Ojus, Ms. Tuma's employment history has been chronically troubled. Naranja On October 31, 1983, Ms. Maedon Bullard, Principal of Naranja Elementary School issued a notice to Ms. Tuma, who was then employed as an art teacher at the school. The notice reads, in part, A parent brought to my attention that you distributed pocket Bibles to some students this date, October 31. * * * This is in violation of School Board Policy (citations omitted). I urge you to review this policy and to adhere strictly to its contents. THIS IS THE SECOND TIME YOU HAVE BEEN GIVEN THIS NOTICE. Petitioner's Exhibit No. 3. On the same day, October 31, 1983, Mrs. Bullard gave Ms. Tuma a copy of a memorandum with attachment on the subject of "Religion in the Public Schools." Dated October 25, 1977, the memorandum is from Ralph D. Turlington, Commissioner of Education in the State of Florida. The essence of the memorandum is a warning to school districts and teachers not to create an unconstitutional preference for one religion over another. With regard to the distribution of Bibles, the memorandum states, The distribution of free Bibles to children in the public schools tends to impair the rights of children to be free from governmental action which discriminates against the free exercise of religious belief. When in practice only a particular kind of religious literature is in fact distributed, "the school board's use of the school system as a means of distribution amounts to its placing, at least in eyes of children and perhaps their parents, its stamp of approval upon [that version], thus creating an unconstitutional preference for one religion over another." (citations omitted.) Petitioner's Ex. No. 2, p. 4 and 5. The memorandum further indicated that the Commissioner would not condone any violation of the law. Air Base On May 13, 1985, while Ms. Tuma was a teacher at Air Base Elementary School, a conference-on-the-record was held. In addition to others, present were Ms. Tuma and the school's principal, Mr. Turano. The conference was called because of complaints that Ms. Tuma had made statements to a student about praying and having faith. Ms. Tuma was instructed that it is a violation of federal law, school board policy and students' civil rights to engage in religious activity in the classroom. Ms. Tuma was warned that if her religious activity in the classroom continued, she could be cited for gross insubordination and could lose her teacher certification. Ms. Tuma promised to abide by school board policies in the future. Palm Lakes: Religion in the Classroom Again On October 24, 1985, it was reported that Ms. Tuma, then an art teacher at Palm Lakes Elementary School, hit a student on the neck with a pencil and cut a lock of hair with a scissors as discipline for fighting with another student. The complaint was assigned Case No. P-2607 by the Dade County Public School's Special Investigative Unit ("SIU,") and investigated. The investigator for the Special Investigative Unit reached the conclusion that the complaint was substantiated. On October 31, 1985, a complaint conference with Ms. Tuma was conducted by Palm Lakes Principal Steven Lovelass. In addition to the complaint about striking the student with a pencil and cutting his hair, other complaints were discussed at the conference. These included that Ms. Tuma discussed the Bible during class, made references to the devil and made references to her church. On December 4, 1985, Ms. Tuma was asked by her employer to undergo a medical examination to determine her "fitness to properly carry out [her] assigned duties." Petitioner's Ex. No. 8. One week later, Ms. Tuma was evaluated by Charles C. Barton, M.D., a psychiatrist. Dr. Barton reported that Ms. Tuma was religiously preoccupied, suffered from impairment of insight and judgment and recommended intervention and possible medication. On December 23, 1985, Ms. Tuma, on her own initiative, was seen by another psychiatrist, Francisco A. Campos, M.D. She related to Dr. Campos that "she does not feel that she needs to see a psychiatrist, but feels that she has to do it in order for her to keep her job." Petitioner's Ex. No. 10. Dr. Campos found her to be preoccupied with religious material and in need of treatment directed toward improving her ego strength and coping skills. Dr. Campos' written opinion was forwarded to Dr. Patrick Gray, then the Executive Director of the School Board's Office of Professional Standards. In the meantime, on December 10, 1986, a conference-on-the-record was held with Ms. Tuma in the office of the Superintendent for the North Area of Dade County. In attendance were Ms. Tuma; her principal, Mr. Lovelass; Superintendent Marvin Weiner; Ms. Doretha Mingo, Area Director; and Supervisor for the Office of Professional Standards, Mr. James E. Monroe. The conference was held to discuss, among other problems, the report in SIU Case No. P-2607 and Ms. Tuma's "continual acts of refusal to comply with both written and verbal directives to cease and desist from instructing (teaching) your students about your religious beliefs, to include issuing Bibles and other religious materials to your students." Petitioner's Ex. No. 12. On January 28, 1986, the principal at Palm Lakes, Mr. Lovelass, forwarded his recommendation in SIU Case No. P-2607 to the Area Superintendent for the North Area of Dade County. On the bases of the substantiation of the complaint after investigation, and Ms. Tuma's statement at the conference-for- the-record that she could not comply with all of the established School Board rules because of personal and religious views, Mr. Lovelass "strongly" recommended that Ms. Tuma, "be separated from employment with the Dade County Public Schools for [among others] misconduct in office and gross insubordination." Petitioner's Ex. No. 11. On February 4, 1986, a memorandum was written to Ms. Tuma by James E. Monroe, Supervisor for the Office of Professional Standards. The memorandum summarized the conference-on-the-record held the previous December 10. Under the heading "ACTION TO BE TAKEN," Mr. Monroe wrote the following to Ms. Tuma: During the conference Mr. Weiner expressed concern relative to your continual failure to comply with administrative directives. He expressed further concern relative to its adverse impact upon your effectiveness as a classroom teacher as reported, by the principal. Mr. Weiner stated that upon receipt of the principal's recommendation for disciplinary action, he would forward his recommendation to the Superintendent of Schools. You were informed that your future employment would be determined upon a review of the facts presented in this conference. You were also informed that the recommen- dations made by the Principal and Area Super- intendent will be reviewed by the Superinten- dent of Schools; approval of the recommended discipline would necessitate action by The School Board of Dade County, Florida. You were informed of the likelihood of this recommendation being presented to the School Board at its next regularly scheduled meeting. Petitioner's Ex. No. 12. On March 7, 1986, Dr. Gray, Assistant Superintendent for the School Board's Office of Professional Standards, by letter to Ms. Tuma, directed her to cease and desist all proselytizing of religion in the classroom. She was further directed in the letter: not to advise students with regard to powers of the devil or hell; not to read from the Bible, advocate the Bible, advocate membership in her church; and, not to make disparaging remarks against any group of people on the basis of race, religion, sex or national origin. The admonishment was repeated in the letter with a warning in unmistakable terms, "I repeat, you are specifically directed to cease any of the above activities; your failure to do so will be con[si]dered to be misconduct in office and gross insubordination, and will subject you to severe disciplinary action by The School Board of Dade County, Florida." Petitioner's Ex. No. 13. On March 20, 1986, Ms. Tuma received a document under the signature of Mr. Lovelass denominated, "Record of Observed Deficiencies/Prescription for Performance Improvement." Petitioner's Ex. No. 14. The deficiencies listed in the document related to non-compliance with School Board rules and policies and provisions of the labor contract that resulted from collective bargaining conducted between the School Board and the teachers' union. Deficiencies also related to non-compliance with published school-site rules and policies consistent with School Board rules and provisions of the contract. The document also provided a prescription or directive. Part of the prescription was for Ms. Tuma to review the Code of Ethics and Principles of Education Profession found in Chapter 6B-1 of the Florida Administrative Code. Another part was to take a "School Law Course," which Ms. Tuma was allowed to take during the summer of 1986. On May 28, 1986, a conference-on-the-record was conducted by Mr. Lovelass with Ms. Tuma to discuss her prescription and employment status. Ms. Tuma was directed to complete the prescription and comply with all directives. Further, she was warned that her upcoming evaluation and recommendation as to future employment were contingent upon "continued professional efforts in remediating all ... prescriptive activities by [the fall of 1986]. In Ms. Tuma's annual evaluation for the 1985/86 school year, her overall summary rating was "unacceptable." In the category of professional responsibility, too, she was rated "unacceptable." Nonetheless, she was recommended for employment to give her the opportunity to remediate her performance deficiencies through completion of the prescription. Due to the unacceptable rating, Ms. Tuma did not receive the step increase in her salary to which she was otherwise entitled. Ultimately, Ms. Tuma was given until October, 1986 to complete the prescription. She was determined in December of 1986 to have done so successfully. In 1989, Nicholas Rinaldi became principal at Palm Lakes. He began to encounter problems with Ms. Tuma in March of 1992. These included distribution of Bibles at school, formation of a secret club of students, solicitation of church membership on school time and intimidation of students. On March 3, 1992, Mr. Rinaldi notified Ms. Tuma of a conference-on- the-record to discuss these problems as well as distribution of a religious letter to a faculty member and inappropriate language to both students and staff. Ms. Tuma responded to the notification with a "Reply of Allegations," dated March 3, 1992. While Ms. Tuma denied or offered explanations for most of the allegations, she admitted giving Bibles to students with their parent's permission. She also admitted giving the letter to a teacher. About this incident, Ms. Tuma wrote in the response that, believing the teacher to be a Christian, she took the liberty to: A. Admonish her, B. Requested prayer for her son to the Pastor and 4 deacons and an elder 'friend' of her, C. I tried to inform some of her friends about the Love of Jesus. But she got real mad at me for: A., B., and C. I asked her to forgive me after I saw that she got mad, but evidently, she hasn't (sic)! In fact one of the 3 Scriptures I wrote in the letter was 'Forgive 70 x's 7" Matthews 18:22 Petitioner's Ex. "B" attached to Deposition of Nicholas Rinaldi, Petitioner's Ex. No. 1. Ms. Tuma's written response concludes, Id. I wish to see the day when we can truly and freely exercise FREEDOM OF RELIGION in our Public Schools. After all it was the Holy Bible the first book used to teach Reading in the Public Schools of America. And we better return to the BASICS or continue to perish! On March 6, 1992, the conference was held with Ms. Tuma, Mr. Rinaldi and Angela Santos, assistant principal, present. Mr. Rinaldi opened the conference with reference to previous violations of Board policy with which Ms. Tuma had been cited. He also quoted from school board officials who had dealt with Ms. Tuma before on similar issues in order to impress upon her that the conference was not dealing with an isolated incident but rather a pattern. Again, Ms. Tuma admitted distributing Bibles and sending the letter with religious references to a faculty member. On March 10, 1992, Mr. Rinaldi issued a summary of the conference-on- the-record in a memorandum to Ms. Tuma. The memorandum recited Mr. Rinaldi's opening of the conference with a review of prior incidents including the complaint conference conducted by Mr. Lovelass in October of 1985 concerning Ms. Tuma's discussion of religion in art class. Ms. Tuma wrote back to Mr. Rinaldi on her copy of his March 10, 1992, memo, "All I said was: 'The devil came to kill, steal & destroy & God came to give us life abundantly.' John 10:10". On March 20, 1992, Mr. Rinaldi provided Ms. Tuma with additional copies of school board rules discussed at the earlier conference. On April 30, 1992, Mr. Rinaldi conducted his second conference-on-the- record with Ms. Tuma to discuss her posting of religious posters on the bulletin boards and doors of her classroom. The previous conferences-on-the-record in February, March and October of 1986, and Mr. Rinaldi's earlier conference that year were discussed with Ms. Tuma as well as a reprimand in October of 1983 for distribution of Bibles. A memorandum summarizing the conference received by Ms. Tuma on May 5, 1992, concluded: In summary, I want to inform you that you have not complied with previous admin- istrative directives to cease all mention of religion at work. Continued violations and noncompliance will result in further disciplinary actions. Exhibit "G," attached to Petitioner's Ex. No. 1. In the meantime, on April 23, 1992, Dr. Joyce Annunziata, Director of the Office Professional Standards for the School Board, notified Ms. Tuma of a conference-on-the-record to be conducted on May 7, 1992, with regard to Ms. Tuma's violations of School Board policies concerning religious references, refusal to participate in a program of assistance, fitness to perform assigned duties, and her future employment status. With regard to the refusal to participate in a program of assistance, Ms. Tuma wrote on her copy of the notice, "Mr. Rinaldi offered it & I told him TWICE I didn't need it! THIS IS FOR PSYCHOLOGIST. I don't need or want to go. I don't believe in them!" Petitioner's Ex. No. 21. The conference was conducted as scheduled. Dr. Annunziata, in conformance with the applicable labor contract that allows the board to obtain a medical evaluation when performance appears to be affected by a teacher's mental health, directed Ms. Tuma to select a physician for an evaluation. Ms. Tuma, despite the directive, refused. On the same date as the conference, May 7, 1992, Ms. Tuma was issued a memorandum from Dr. Gray, Assistant Superintendent, to serve as a written basis, as called for by the applicable labor contract, for a required medical examination. The memorandum directed Ms. Tuma to select a physician from an attached list and to communicate that choice to Dr. Annunziata. Ms. Tuma continued to refuse to select a physician to conduct the evaluation. On June 18, 1992, Mr. Rinaldi conducted a conference-on-the-record to discuss with Ms. Tuma violations of professional responsibilities, noncompliance with directives and her annual evaluation. She was issued a prescription which included reading and summarizing applicable School Board Rules. In her annual evaluation for the 1991-92 school year, Ms. Tuma was rated "unacceptable" overall and in the category of professional responsibilities. As a result, for the second time in her career, she did not receive the salary "step" increase that she was due by virtue of the length of her employment with the School Board. In August of 1992, the School Board contemplated a suspension of Ms. Tuma and initiation of dismissal proceedings against her for gross insubordination and misconduct in office. Instead, at Ms. Tuma's request, the School Board allowed her to take a leave of office without pay from August 26, 1992 through December 30 of the same year to seek medical treatment. The School Board also referred her to the Employee Assistance Program (EAP). This office provides assistance to School Board employees having problems affecting job performance. As a condition of employment, Ms. Tuma was directed to undergo the medical evaluation and participate in a counseling/therapy program monitored by EAP during the leave of absence. In order to return to work she would have to receive medical clearance. She was also advised that upon return to the work site, any recurrence of the previous problems would lead to a termination of employment. On August 11, 1992, a second "Written Basis for Required Medical Examination," was issued to Ms. Tuma by Assistant Superintendent Gray. Ms. Tuma selected Dr. Anastasio Castiello to conduct the evaluation. The evaluation was conducted; no pathology was diagnosed but counseling was recommended by Dr. Castiello. Ms. Tuma's participation in EAP proceeded without incident. Following a delay in seeing Dr. Castiello in December in order to obtain clearance to return to work, Ms. Tuma was seen by Dr. Castiello in January of 1993. Dr. Castiello continued to recommend therapy for Ms. Tuma but he cleared her to return to work. Conditions of employment were attached to Ms. Tuma's return. Her involvement with a program of therapy was to be monitored. She was required to adhere to site directives, policy, prescriptive directives and the Code of Ethics. She was warned again that recurrence of behavior with regard to religion in the classroom would be considered an act of insubordination and would incur discipline. Ms. Tuma was placed at Ojus Elementary effective January 27, 1993. Ojus Failure to Continue Therapy Ms. Tuma finished the 1992/93 school year at Ojus. In June of 1993, it was determined that she had remediated the performance deficiencies listed on her 1991/92 evaluation. On September 22, 1993, however, EAP reported that it had no information that Ms. Tuma was participating in counseling and therapy. Four months later, Dr. Annunziata informed Ms. Tuma in writing that she was not in compliance with the directive that she participate in a program of counseling and therapy. Dr. Annunziata had learned that Ms. Tuma had been to only three sessions during the entire year of 1993. These sessions were with Dr. Stephan Tchividjian. In February of 1994, Dr. Tchividjian wrote Dr. Annunziata. He stated that the last time he had seen Ms. Tuma was in March of 1993. He relayed his opinion that Ms. Tuma needed to continue in therapy for her issues with religion. Ms. Tuma was referred again to the Employee Assistance Program. On March 1, 1994, Dr. Friedman, the principal at Ojus, conducted a conference-on-the-record with Ms. Tuma to discuss noncompliance with a site directive to modify her schedule for a field day and her failure to report when called to the office. Ms. Tuma was advised that her future employment status depended on compliance with school site directives. Once again, she was warned that noncompliance would be considered misconduct in office and insubordination that would subject her to disciplinary action. Personal Communication and Gifts for the Principal Ms. Tuma was also given another directive and a reminder. She was directed not to communicate with Dr. Friedman in writing about any matter unless it was school-related. She was reminded that Dr. Friedman was not allowed to receive gifts that exceed $25 in value. The directive and reminder were given because Dr. Friedman had received from Ms. Tuma numerous gifts as well as invitations to go on vacation and attend functions with her. Dr. Friedman summarized some of the communications and gift-giving as follows: ... Ms. Tuma would write me an inordinate amount of personal letters and cards. I have files of them. She would allege that I had eyes beautiful like Jesus. Gorgeous. She would allege that she wanted to take many photographs of me, that she wanted to do a painting of me and my daughters, that I would have to pose for her to do that. She would take pictures of me, and she would stand in the hallway and look at my pictures. Now that would send off signals to other people. Now she would just shower me with all kinds of gifts. This was just something that was extreme. (Tr. 141.) On March 7, 1994, Dr. Annunziata conducted a conference-on-the-record with Ms. Tuma to discuss her noncompliance with the directive to attend counseling and therapy, her medical fitness to perform assigned duties, and her future employment status. In addition to Dr. Annunziata and Ms. Tuma, Dr. Freidman and Dr. Joseph Burke, the Director of Region II for the School Board, were present. Ms. Tuma was directed to submit to another medical evaluation, this one by Dr. Ronald Bergman. Ms. Tuma complied; the evaluation was performed. Ms. Tuma was also directed to continue her program of counseling and therapy and to keep EAP informed of compliance. From April to September of 1994, contrary to the clear directive the previous March, Ms. Tuma continued to send Dr. Freidman presents and personal communications. For example, in September, Ms. Tuma, while on vacation in Greece, sent Dr. Friedman a post card and a birthday card. The birthday card contains the following hand-written message: May God Himself enlighten you fully & direct your paths. May He be your guide Savior & Friend ... May He bless you and keep you, May He let His face shine upon you & give you Peace - I HOPE you have a VISION of HIM & you can see for your self what I said of your eyes is real ... Let us aim to look like HIM in many of His ways: His Gentle- ness, His kindness & His LOVE! & know that in spite of them and in spite of you SE HAGA POPOLI! Petitioner's Ex. No. 43. "Se haga popoli," is Greek for "I love you a lot." The card is entirely personal in nature and does not relate at all to school matters. Parental Complaints and Continued Refusal of Therapy In October, 1994, Dr. Friedman received the first in a sequence of parental and staff complaints about Ms. Tuma's professional demeanor and negative comments about staff members. Furthermore, on October 4, 1994, Dr. Gray advised Ms. Tuma that she was not in compliance with the directive that she participate in a program of counseling/therapy. She was directed to begin a program of therapy promptly. She was directed again to adhere strictly to all prior directives. On October 7, 1994, Ms. Tuma wrote to Dr. Gray, "I categorically refuse to go to any psychologist because I don't believe in them." Petitioner's Ex. No. 44. On October 18, 1994, Dr. Gray, in response to the October 7 missive, advised Ms. Tuma in writing that her employment was conditioned upon compliance with a program of medical therapy. His letter ended, "If you do not initiate confirmed compliance within ten day of receipt of this letter, your employment is subject to termination." Petitioner's Ex. No. 45. On November 28, 1994, Ms. Tuma began treatment with Dr. Doris Amaya. More Meetings and Conferences On December 8, 1994, an informal meeting was held between Dr. Friedman and Ms. Tuma concerning the taking of attendance in art class, alteration of the children's art work by Ms. Tuma, and the need to treat children's self-esteem with sensitivity. During the meeting, Ms. Tuma called Dr. Friedman a liar. The meeting was memorialized in a memorandum to Dr. Gray from Dr. Friedman, in which Dr. Friedman wrote, Ms. Tuma continues to demonstrate a pattern of flagrant disrespect toward administrative authority. Please advise ... as to what supportive action I may expect from district level as to this accelerating problem. Petitioner' Ex. No. 48. On March 1, 1995, at a parent/teacher conference concerning a grade of "C" Ms. Tuma gave to the child of the parents present, Ms. Tuma was asked to explain the grade when the child had received "A's" and "B's" in all of his other classes. The parents complained to Dr. Friedman that Ms. Tuma advised them that "all of the teachers and faculty at Ojus Elementary School were after her, were against her, and involved in some conspiratorial way. She said that my children's grades were falsely stated as good in their classes when in fact, they were really 'bad' as reflected by her grades." Petitioner's Ex. No. 54, Attachment "C." The complaint went on to relay that the conference ended with Ms. Tuma accusing one of the parents of being in conspiracy with the faculty or being "some type of liar." Id. On March 6, 1995, Dr. Freidman conducted a parent/teacher conference with Ms. Tuma and the parent who had complained about Ms. Tuma's bizarre behavior at his March 1, 1996 conference with her. During this conference, Ms. Tuma again stated that some of the teachers at the school were against her and had given false grades to students while her grade of the student in question was correct. She also called the parent a "liar." On March 8, 1995, another parent/teacher conference of Ms. Tuma's was held in Dr. Freidman's presence. This conference involved a parent different from the conference two days earlier. The complaint in this case was that Ms. Tuma had given a grade to a student based on her conduct rather than her work. It became apparent that Ms. Tuma, indeed, was lowering students' work grades for misconduct. The next day, another a parent/teacher conference was held again with Dr. Freidman present. This conference concerned yet another parent and a third child. The conference was held because the child, an avid art student, was not enjoying Ms. Tuma's class. Again, it became apparent that Ms. Tuma was lowering grades for work due to perceived misconduct. Dr. Freidman apprised Ms. Tuma that this was contrary to School Board policy. In response, Ms. Tuma wrote on a summary of the conference which she was given, "Dr. Freidman has a personal vendetta against me, because I've Blown the Whistle about her & her favourite friends there; Dr. Friedman embraced the Negativism of these parents!" She also wrote, "The councelor (sic) told me: 'Don't be surprised if she: (Friedman); set these parents up in the telephone to say certain things against you." Petitioner's Ex. No. 51. On March 27, 1995, Dr. Freidman conducted a conference-on-the-record with Ms. Tuma to discuss her professional responsibilities, performance to date, and her future employment status. Also discussed were her unprofessional conduct during parent conferences, her noncompliance with the School Board's grading policy, accusations against faculty members, and violations of the Code of Ethics and the Principles of Professional Conduct in the Education Profession. Ms. Tuma was directed to read the section of the board's rules which indicate that academic and effort grades are independent of conduct grades. The March 1995 Prescription and Outright Refusal to Perform On March 29, 1995, Ms. Tuma was issued a "Record of Observed Deficiencies" with a "Prescription for Performance Improvement" for the category of professional responsibilities. Deficiencies cited in the document included: noncompliance with the grading policies found in School Board rules; violation of Rule 6B-1.006, Florida Administrative Code, by intentionally making false statements about colleagues to parents and staff; noncompliance with the labor contract; and noncompliance with school site rules and policies. While considerably more detailed, in summary, the plan activities under the prescription required Ms. Tuma to read and familiarize herself with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida; read and summarize cited board rules on grading policy; read and summarize the 1994-95 School Improvement Plan Strategy to Improve Conduct; and read a handout related to effective attitudes for teachers and develop a parent involvement plan using guidelines in the handout. Ms. Tuma did not agree that she needed to complete the prescription, felt the prescription was unfair, and refused to make any effort to perform it. On March 30, 1995, Dr. Friedman directed Ms. Tuma to meet the next day to discuss a segment of the prescription. Ms. Tuma advised the principal that she would not attend the meeting. Dr. Friedman told her non-attendance would be gross insubordination. The next day, the day before spring break, Ms. Tuma took a sick leave day. Following the break, more than a week later, Ms. Tuma met with Dr. Friedman. At the meeting, she informed Dr. Friedman that she would not perform the prescription. Dr. Friedman regarded Ms. Tuma's refusal as very serious not only because it constituted, in her view, gross insubordination, but because the incidents leading to the prescription had involved the welfare of Ms. Tuma's students. Dr. Friedman requested that Ms. Tuma be reassigned to another school or that she be dismissed as a teacher. When presented with a document showing an alternative assignment, Ms. Tuma, contrary to district-wide procedure, refused to sign it. Ms. Louise Harms, then director of OPS, conducted a conference-on-the- record with Ms. Tuma to discuss the matters which had occurred at Ojus, including her refusal to perform the prescription, and Dr. Friedman's recommendation that she be dismissed as a teacher. At the conference, Ms. Harms had available to her a fax from Ms. Tuma's attorney advising that Ms. Tuma would not perform the prescription. As the conference got underway, Ms. Tuma reiterated her refusal to follow the prescription. She maintained this position for an extended period of time during the conference which lasted two hours. Present at the conference was Dr. Joseph Burke, Personnel Director of the Dade County Public Schools, and a region director. Toward the end of the conference, Dr. Burke informed Ms. Tuma that it was his recommendation that she be dismissed given her position of refusing to perform the prescription. In response, Ms. Tuma asked what would happen if she were to follow the prescription. The memorandum summarizing the conference shows Dr. Burke's reply to have been: The gross insubordination has occurred. You refused to do the Prescription. We can't change that fact. You are now saying that you are now willing to do what you blatantly refused to do even at the onset of this conference. I have a feeling that your change of mind is directly related to the recommendation for dismissal. Petitioner's Ex. No. 58, p. 12. Ms. Tuma then asked about the possibility of taking a leave of absence. Dr. Burke responded to Ms. Tuma that she would not be able to complete the prescription while on leave and asked her what she was requesting: to remain on faculty at Ojus and perform the prescription or to take leave during which time she would not be allowed to complete it. Ms. Tuma requested leave. The Leave of Absence It was decided that Ms. Tuma's request for leave would be granted from April 17, 1995 through January 29, 1996. Ms. Tuma's evaluation for the 1994/95 school year rated her, for the third time, "unacceptable" both overall and in the category of professional responsibilities. She was not recommended for employment. In July and August of 1995, while on leave, Ms. Tuma wrote to Dr. Friedman despite the directive not to communicate with her personally. While the letters relate marginally to a school-related matter, that is, whether Dr. Friedman should help her return to the school, they are largely personal communications. For example, the July letter states, "I do wish we could go skiing in the winter, snorkel in the summer, go to Greece in the Spring or fall." Petitioner's Ex. No. 63. The letter concludes with a post-script, "Please let me know; don't be so snobbish, hard and un-forgiving: Could we meet you for lunch one day?, me & mom - we'll treat you. Maybe Olive Garden or so ... Please?, then we'll talk a little bit more. Thank you." Id. On August 16, 1995, Dr. Gray met informally with Ms. Tuma and her attorney. In the meantime, Ms. Tuma requested that her leave be terminated and she be allowed to return to Ojus on the upcoming November 6. At the meeting, Ms. Tuma advanced the date of her request to terminate leave to the start of the school year. She said that she was repentant about having refused to perform the prescription and that she would do it once her leave was over in exchange for being allowed to return to work before her leave was scheduled to be up. Ms. Tuma's requests were denied and she was advised that she would be apprised of her status upon completion of review of her records. On September 8, 1995, Ms. Tuma's 1995/96 salary was frozen per denial of a salary step increment. f. School Board's Last Attempt On November 8, 1995, Dr. Gray conducted a conference-on-the-record with Ms. Tuma to discuss her performance assessment to date, her medical fitness to perform full classroom duties, her noncompliance with directives, rules, contract provisions, and her future employment status. At the November 8, 1995 meeting, in a final attempt to save Ms. Tuma her job, Dr. Gray gave her two options: to work as an adult education teacher or to be redirected to a paraprofessional position. Ms. Tuma rejected both options. Suspension and Dismissal Proceedings Having exhausted all avenues of assistance to Ms. Tuma, the School Board, on January 24, 1996, suspended her and initiated these dismissal proceedings for gross insubordination and willful neglect of duties.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the School Board of Dade County, Florida, issue a Final Order sustaining the suspension without pay of Maria E. Tuma and dismissing her as an employee of the School Board of Dade County, Florida, without back pay, for gross insubordination and willful neglect of duties, pursuant to Section 231.36(4), Florida Statutes. DONE AND ENTERED this 18th day of October, 1996, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0820 Petitioner's Proposed Findings of Fact Paragraphs 1-17, 19-62, insofar as material, are accepted. Paragraph 18 is rejected as irrelevant. It is not clear from the evidence that this event was part of Ms. Tuma's pattern of insubordination. Respondent's Proposed Findings of Fact Paragraph 1 is accepted except that Ms. Tuma's insubordination had an effect on her competency. Paragraph 2 is accepted. Paragraph 3 is rejected for containing conclusions of law. Paragraph 4 is rejected with the exception of the last two sentences which are accepted. COPIES FURNISHED: Octavio J. Visiedo Superintendent Dade County School Board 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Joseph F. Lopez, Esquire 250 Bird Road, Suite 302 Coral Gables, Florida 33146 Ms. Maria E. Tuma 11320 Northwest 58th Place Hialeah, Florida 33012
The Issue The issue is whether Respondent's behavior toward an assistant principal violated the prohibitions against misconduct in office, pursuant to Florida Administrative Code Rule 6A-5.056(2), and gross insubordination, pursuant to rule 6A-5.056(4), so as to constitute just cause for Respondent's dismissal, pursuant to section 1012.33(6)(a)2., Florida Statutes.
Findings Of Fact Petitioner has employed Respondent as a teacher since 2001. He has taught English at North Dade Middle School for the past nine years. For the 2015-16 school year, Respondent was supervised by principal Fabrice Laguerre and assistant principal Kayla Edwards. Following an observation of Respondent, Ms. Edwards submitted to the principal a report citing several teaching deficiencies. The principal, who is now a principal at another school, decided that Respondent was or might be in need of professional assistance in the form of a Performance Improvement Plan (PIP). Placing a teacher on a PIP requires the principal to provide Respondent with notice of a Support Dialogue Meeting. The record does not reveal whether the purpose of the Support Dialogue Meeting is to determine whether Respondent shall be placed on a PIP, to prepare the PIP, or to deliver an already- prepared PIP. Earlier, the principal had agreed with Respondent not to conduct any disciplinary meetings with Respondent without Respondent's union representative in attendance. Respondent wanted a witness to what might transpire during such a meeting, and the principal understood that this was the purpose of having a witness at each such meeting. Toward the end of the school day on December 15, 2015, the principal summoned Respondent to his office. Respondent did not know why he was being summoned to the principal's office. Respondent tried unsuccessfully to have the school's union representative in attendance, so Respondent reported to the principal's office without a representative. When Respondent arrived at the principal's office, he asked if he needed a union representative or other witness. The principal replied that Respondent could have a representative, but this meeting was merely to provide Respondent with notification of the "real" meeting, which was to be within 48 hours of delivery of the notice. The meeting to which the principal referred was a Support Dialogue Meeting. Despite the principal's assurance to the contrary, the December 15 contact seems to have involved more than merely delivering a notice of a Support Dialogue Meeting in a day or two. As the principal testified, as soon as Respondent entered the office, implicitly assenting to sufficient contact to receive the notice described by the principal, the principal invited Respondent to sit down at a table, at which Ms. Edwards was already seated. The mere delivery of a notice would not have required that Respondent take a seat and probably would not have required the attendance of Ms. Edwards, unless the principal wanted a witness to his delivery of the notice to Respondent. Still standing, Respondent read some papers in front of him on the table and correctly concluded that they reflected unfavorably on his teaching performance and the source of the information was Ms. Edwards. It is impossible to sort out exactly who said what at this juncture. Respondent testified that his first comment was that he could not attend the meeting without a witness, and Ms. Edwards replied, "boy, get in here, stop your drama, and sign these papers." The reference to "boy" is implausible. It seems unlikely that Ms. Edwards would have uttered such an insult and, if she had, it seems as unlikely that Respondent would have remained in the office after hearing this disrespectful appellation. Ms. Edwards may have spoken the remaining words, but they are inconsequential--direct and plainspoken, but not unprofessional or disrespectful. The principal testified more plausibly that Respondent looked up after examining the paperwork and announced that this better not be about his teaching because he had taught a "perfect" lesson to the class that Ms. Edwards had observed. The principal again invited Respondent to take a seat. Instead, Respondent characterized the PIP as part of a "witch hunt" and averred that Ms. Edwards did not know what she was doing when observing Respondent. This testimony of the principal is credited. Past observations of Respondent performed by other administrators were satisfactory. Respondent and Ms. Edwards appear to have had some difficulties in the past. Most importantly, as noted above, Respondent had good cause to doubt that the sole purpose of the December 15 meeting was to deliver a notice of a Support Dialogue Meeting. Even the Notice of Specific Charges characterizes the December 15 meeting as the Support Dialogue Meeting itself. Respondent thus could reasonably believe that he could still prevail upon the principal not to implement a PIP or to design a less-elaborate PIP. On these facts, in a meeting attended exclusively by himself, the principal, and Ms. Edwards, Respondent's questioning the qualifications of Ms. Edwards did not constitute just cause for any adverse employment action, as long as he did not do so in bad faith, and nothing in the record indicates that he did. The principal testified that Ms. Edwards refrained from insulting Respondent and, more specifically, said nothing about where he went to college. Ms. Edwards' testimony candidly does not bear out the principal's testimony on this point. Ms. Edwards testified that she and Respondent each inquired of the other where he or she went to college, implying an inferiority in the other's school of higher learning. However, the parties' "questions" as to academic pedigrees are found to have been intended as nothing more than mild insults--that is, slights--and, as such, insubstantial. The principal also testified that, during this exchange, Respondent pointed a finger at Ms. Edwards with a "relaxed hand." This testimony is credited, but any implication that such a gesture was intended or perceived as threatening is rejected. Respondent's gesture was for mild emphasis: textually, this emphasis would be expressed by underlining, not boldface. This marks the end of the portion of the December 15 incident alleged as proof of misconduct in office. Interestingly, the testimony of Ms. Edwards and the principal set forth in the preceding two paragraphs does not describe Respondent in terms suggesting any loss of composure, but rather in terms not inconsistent with an employee unapologetically advocating for himself. The principal next asked Ms. Edwards to make a copy of a document, which necessitated her leaving the office for a few moments. But even this seemingly innocuous act proved fraught. Returning, Ms. Edwards did not see Respondent standing behind the door, and, when she opened it, the door struck Respondent harmlessly. Trying to seize a potential advantage, Respondent, implying that the act had been intentional, asked the principal if he had seen what had happened. The principal sensibly replied that Ms. Edwards could not see Respondent through the solid door, and the bump was accidental. The principal then ushered Ms. Edwards and Respondent out of the office. Up to this point, there had been no other witnesses because the office door had been closed--or, as to the last matter, closing. Once the unhappy trio left the office, the principal and Ms. Edwards testified that Respondent "kept going after" Ms. Edwards, now loud enough for others to hear, and caused much embarrassment. Ms. Edwards added that she was crying. Even though not alleged as grounds for adverse employment action, from Petitioner's perspective, this testimony from the principal and Ms. Edwards is important because it could provide a basis for inferring an earlier lack of composure on Respondent's part. However, as assessed by the Administrative Law Judge, this testimony is important because it is untrue and undermines the credibility of the principal and Ms. Edwards as witnesses. Three independent witnesses to the exit of the edgy ternion from the principal's office uniformly portrayed Respondent as not agitated. The first of these witnesses was a secretary, who was in her office two doors down from the principal's office. The secretary heard absolutely nothing, even though she was close enough to hear anything that might have been said, even if not loudly. Her testimony is credited. Ms. Edwards approached Respondent to give him the papers that she had copied. Ms. Edwards testified that she did not want Respondent to see that she was crying, so she extended her arm out in Respondent's direction and released her grip. It is hard to understand how, with her eyes averted from Respondent, Ms. Edwards would have known if Respondent was looking at her to receive the papers. In her version, Ms. Edwards released the papers and, for whatever reason, Respondent did not grasp them before they fell to the floor. Ms. Edwards' testimony is not credited, except for the papers falling to the floor. For his part, Respondent testified that he was the one crying because Ms. Edwards employed a phrase that reminded him of his recently deceased mother. Based on the testimony of the three independent witnesses, which omits any mention of tears and, to varying degrees, is inconsistent with such emotion, the crying testimony of Ms. Edwards and Respondent is rejected as melodramatic embellishment. Respondent testified that Ms. Edwards thrust the papers into his chest, leading with her closed hand. This testimony, which is credited, is corroborated by two custodians who witnessed the attempted exchange. The exchange was attempted because everyone agrees that the papers fell to the ground where the principal gathered them up. One custodian testified that Ms. Edwards, who was visibly agitated, walked quickly up to Respondent and, without much force, pressed the papers into the chest of Respondent, who grinned in response. The other custodian testified that Ms. Edwards, with her hand leading, "very strongly" "snapped" the papers into Respondent's hands "and stomach area," but this custodian thought that the two of them were playing around. Despite minor discrepancies in their testimony, the three independent witnesses clearly establish that Respondent had not lost his composure. Based on the foregoing, Petitioner failed to prove misconduct in office. Specifically, Petitioner did not prove that Respondent failed to treat Ms. Edwards with dignity or exercised poor judgment by insulting her and objecting to her supervisory qualifications. Each party slighted the other's academic pedigree; this inconsequential lapse, committed in the presence of only the principal, did not render objectionable Respondent's behavior in the incident. His questioning of Ms. Edwards' qualifications to observe his teaching would raise a different factual issue if directed toward his students or even uttered in the presence of his students, but raising this issue with the principal was appropriate and raising it in the presence of Ms. Edwards, whom the principal had included in the meeting, was forthright and timely. Respondent raised this issue at what he might have reasonably assumed was his Support Dialogue Meeting--meaning that this might have been his last chance to avoid a PIP or at least avoid a more elaborate PIP. Petitioner failed to prove any aggression by Respondent--unwarranted or warranted--or that Respondent was intimidating, abusive, harassing, and offensive toward Ms. Edwards. Petitioner failed to prove that Respondent made malicious and untrue statements in defending this case. His testimony that Ms. Edwards referred to him as "boy" has been discredited, but the record fails to establish that this testimony was a knowing falsehood. Petitioner failed to prove that Respondent's effectiveness has been impaired by anything that he said or did in connection with the December 15 meeting. Petitioner has failed to prove that Respondent committed gross insubordination. As alleged in the Notice of Specific Charges, this count fails even to state a claim of gross insubordination under the rule for the reasons set forth in the Conclusions of Law.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the Notice of Specific Charges and reinstating Respondent with "back salary," as provided in section 1012.33(4)(c). DONE AND ENTERED this 2nd day of December, 2016, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 2nd day of December, 2016.
The Issue Whether the challenged portions of Respondent's Manual of Administrative Personnel Procedures (MAPP), which is incorporated by reference in School Board Rule 6Gx13-4D-1.022 (specifically) that paragraph in subsection C-2 of the MAPP which references Section 231.29, Florida Statutes, and the following language in subsection C-8 of the MAPP, under Florida Principal Competency (FPC) No. 11: "The principal who has TACTICAL ADAPTABILITY: looks at problems as if there were no rules, then decides what to do to resolve the situation tactfully") are invalid exercises of delegated legislative authority, within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioner. Whether Petitioner has standing, pursuant to Chapter 120, Florida Statutes, to challenge these provisions.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, including the parties' Pre-Hearing Stipulation,2 the following findings of fact are made: Respondent (School Board) is a duly-constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Section IV, of the Florida Constitution, and Section 230.03, Florida Statutes. Petitioner is a resident of Miami-Dade County, Florida, and the parent of a child enrolled in the Miami-Dade County Public School System (MDCPS) as a ninth-grade student at Miami Killian Senior High School (Killian).3 Petitioner is currently serving as the parent representative on the Educational Excellence Council at Killian. As Petitioner states in her "resume" (Petitioner's Exhibit 18), she is "an advocate for better education," and, "as such . . . ha[s] participated in committees, written numerous research-based reports, attended countless School Board meetings,4 and testified at many public hearings." Over the years, when she has had concerns regarding practices or policies at her children's schools, she has made these concerns known to School Board administrators and School Board members. Petitioner is challenging, as an invalid exercise of delegated legislative authority as defined in Section 120.52(8), Florida Statutes, language found in parts of the School Site Administrator Performance Planning and Assessment System (PPAS), which is contained in section C of the Manual of Administrative Personnel Procedures (MAPP) and which, together with the remaining portions of the MAPP, is incorporated in, and made a part of, School Board Rule 6Gx13-4D-1.022. Subsection C-1 of the PPAS (which Petitioner is not challenging) sets forth the "[s]cope and [p]urpose" of the PPAS. It provides as follows: This section, effective with the 1998-1999 school year, sets forth the rules, regulations and procedures for the establishment, maintenance, and administration of the performance planning and assessment system applicable to school site managerial personnel. Subsection C-2 of the PPAS contains a "[s]tatement of [p]olicy." It provides as follows: The Miami-Dade County Public Schools Performance Planning and Assessment System was developed as an aid to improving the performance and developing the potential of every administrator. A performance plan mutually developed by the administrator and the supervisor consists of three major components: Developing plans directly linked to overall job functions as related to the job duties and responsibilities, school site target objectives, and/or major system objectives, as applicable. Improving job performance by reviewing past assessments and setting expectations for improvement or enhancement. Developing personal potential through emphasis on standards required for success and professional growth in the present job, as well as preparation for future career goals. In evaluating performance standards, the emphasis is placed on collecting data which indicate that the individual demonstrates or practices the performance standards established for the assigned position and the school site target objectives. The performance assessment procedures set forth herein shall be adhered to strictly. Administrators shall have their performance evaluated by their immediate supervisor (assessor) and their assessor's supervising administrator (reviewer) only. Formal assessments and evaluations placed in administrator's official personnel files shall be in compliance with the procedures and instruments of the Performance Planning and Assessment System. Administrators being appraised need to be aware of the rationale, intent and procedures of the performance assessment system in relation to their job assignment. Florida Department of Education Performance Assessment System guidelines: specify that a comprehensive performance assessment system is fair, equitable, and legally sound; establish procedures for the collection, retrieval and use of data to provide feedback to an individual, a team, and the system; provide data for recognizing high performance through a variety of means; consider the specific conditions of the site in establishing expectations; promote the growth and development of the individual and the continuous improvement of the organization; allocate time to plan, coach and counsel for higher performance; provide orientation on the system and skill development in observing, mentoring, coaching and counseling for those in and affected by the system. Administrators who manage the performance assessment system must have knowledge and skills that go far beyond an academic knowledge of the system. They must understand and be able to respond to evaluative data on the system. They must also be able to link the performance assessment system to the other components of the Comprehensive Human Resources Development System. Pursuant to Florida Statute 231.29, the system (district) must include a mechanism to give parents and teachers an opportunity to provide input into the administrators performance assessment, when appropriate. The district mechanisms include notification to parents of this provision printed on student report cards and notification to teachers of this provision through memorandum included in staff handbooks. [Underlining added.] Principals must ensure that all assistant principals are exposed to and/or have experience in the 19 Florida Principal Competencies and the five M-DCPS Technical Skills. There may be cases where an assistant principal may not be assigned to work with all of the competencies and all of the technical skills. However, all assistant principals must be exposed to these competencies and technical skills either through actual experience(s), or attendance at district sponsored workshops, or other professional growth activities. Petitioner is challenging the underlined language of subsection C-2 of the PPAS set forth above (Input Provision), which was added to School Board Rule 6Gx13-4D-1.022 (Rule) on or about November 7, 1997. Before amending the Rule to add the Input Provision, the School Board published a Notice of Intended Action (dated September 12, 1997), which read, in pertinent part, as follows: PURPOSE AND EFFECT: To amend Board Rule 6Gx13-4D-1.022, Manual of Administrative Personnel Procedures, by revising the document, Manual of Administrative Personnel Procedures (MAPP), which is incorporated by reference and is part of this rule, in order to be in compliance with new state legislation, Section 231.29 . . ., Florida Statute[s]. SUMMARY: The revised rule provides language describing the mechanism to be used in the District for giving parents and teachers input into administrative assessment as appropriate. . . . SPECIFIC AUTHORITY UNDER WHICH RULEMAKING IS AUTHORIZED: 230.22(2), F.S. LAW IMPLEMENTED, INTERPRETED, OR MADE SPECIFIC: 231.02; 231.0861; 231.087(1); 236.0811, F.S.; 6A-4.0083; 61-4.0084 FAC. In addition, the School Board placed an advertisement in the September 29, 1997, edition of the Miami Daily Business Review, which read, in pertinent part, as follows: NOTICE The School Board of Dade County, Florida, announces the following Board Rule action will be taken at its 1:00 p.m. meeting on: November 5, 1997 School Board Auditorium 1450 N. E. Second Avenue Miami, Florida 33132 To Amend: 6Gx13-4D-1.022, Manual of Administrative Personnel Procedures (MAPP), in order to be in compliance with new state legislation, Section 231.29 . . ., Florida Statutes[s]. Specific Authority: 230.22(2), F.S. Law Implemented, Interpreted, or Made Specific: 231.02; 231.0861; 231.087(1); 236.0811, F.S.; 6A-4.0083; 61-4.0084 FAC Although Section 231.29, Florida Statutes, was mentioned in the Input Provision, neither the "Specific Authority," nor the "Law Implemented, Interpreted or Made Specific" portions of the November 5, 1997, amended version of the Rule contained any reference to Section 231.29, Florida Statutes. It was not until the day after the October 21, 1998, School Board meeting (the last School Board meeting at which members of the School Board took action to amend the Rule) that Section 231.29, Florida Statutes, was added to the "Law Implemented, Interpreted or Made Specific" portion of the Rule. The addition was made, not by the members of the School Board, but by the School Board Clerk, Ileana Menendez, who believed that such action was authorized by School Board Rule 6Gx13-8C-1.061, which, at all times material to the instant case, has provided as follows: CORRECTION OF CERTAIN ERRORS IN RULES The Superintendent of Schools, as Secretary to the Board, shall have the authority to review the School Board Rules and when judged useful shall: Correct grammatical, typographical, and like errors not affecting the construction or meaning of the rules; Keep a record of corrections made pursuant to subsection 1; and Report to the Board any corrections made. Ms. Menendez reported the "correction" she had made to the Office of the School Board Attorney. The English version of the "notification to parents . . . printed on student report cards,"5 which is referred to in the Input Provision, reads as follows: FLORIDA LAW PROVIDES FOR PARENT INPUT ON TEACHER/ADMINISTRATOR PERFORMANCE, WHEN APPROPRIATE. FOR MORE INFORMATION, CONTACT THE SCHOOL, PRINCIPAL, OR THE REGION OFFICE. By providing such notification, the School Board alerts the parent to the parent's opportunity to provide (at any time the parent deems appropriate) information and opinion regarding an administrator's performance for consideration by those (specially-trained individuals) charged with the responsibility of evaluating the administrator's performance. The significance of the "19 Florida Principal Competencies" referred to in the paragraph immediately following the Input Provision is described in subsection C-7 of the PPAS, which reads as follows: PERFORMANCE CRITERIA In order to qualify for a rating Distinguished Performance Standards on the annual evaluation form, assessees must be rated Distinguished Performance Standards on 18 out of the 19 Florida Principal Competencies and rated as Distinguished Performance Standards on five out of the five M-DCPS Technical Skills, and on Performance Related to Job Targets. In order to qualify for a rating Commendable Performance Standards, assessees must be rated as Commendable Performance Standards on 17 out of the 19 Florida Principal Competencies and rated as Commendable Performance Standards on four out of the five M-DCPS Technical Skills. Performance Related to Job Targets must be at least 90% accomplished (C-8 through C-11). In order to qualify for a rating Competent Performance Standards, assessees must be rated as Competent Performance Standards on 16 out of the 19 Florida Principal Competencies and rated as Competent Performance Standards on three out of the five M-DCPS Technical Skills. Performance Related to Job Targets must be at least 80% accomplished (C-8 through C-11). Assessees not exhibiting the minimum number of indicators listed for each standard of the 19 Florida Principal Competencies and/or the five M-DCPS Technical Skills, and/or who have not met their Performance Related to Job Targets will receive an overall rating of Below Expectations on Performance Standards and will require a Professional Improvement Plan (C-8 through C-11). The "19 Florida Principal Competencies" are listed and explained in subsection C-8 of the PPAS. "Florida Principal Competency" (FPC) No. 11 is "tactical adaptability," which is described in subsection C-8 of the PPAS as follows: TACTICAL ADAPTABILITY is the ability to adapt one's interaction and behavior to fit the situation. (3 out of 4) DIMENSIONS: ADAPTABILITY: Maintaining effectiveness in varying environments, tasks, responsibilities or with people; FLEXIBILITY: Modifying behavior to reach a goal; INDIVIDUAL LEADERSHIP: Utilizing appropriate interpersonal styles to guide individuals to task accomplishment. The principal who has TACTICAL ADAPTABILITY: adopts roles of listener, facilitator and confronter as needed finds ways to get around policies and procedures which interfere with the school's goals looks at problems as if there are no rules, then decides what to do to resolve the situation tactfully understands how own behavior affects others and makes appropriate adjustments. Except for the language in numbered paragraph 11.2, which Petitioner is no longer challenging (as a result of the School Board's agreement to initiate action to replace it with other language agreeable to Petitioner6), the foregoing, including the language in numbered paragraph 11.3 (Paragraph 11.3), the validity of which (along with the Input Provision) Petitioner disputes, is a verbatim recital of language contained in the Florida Principal Competencies section of the Human Resources Management and Development System Guidelines in Florida's School Districts developed, after study and scientific research, by the Florida Council on Educational Management.
The Issue Whether the Broward County School Board (School Board) has an unwritten policy excluding all charter schools, including the City's charter schools, from consideration in the distribution of funds under Section 1011.71(2), Florida Statutes1 (Challenged Statement) and, if so, whether that unwritten policy constitutes a "rule," within the meaning of Section 120.52(16), Florida Statutes, that violates Section 120.54(1)(a), Florida Statutes, as alleged by the City of Pembroke Pines (City).
The Issue Whether Respondent, a school teacher employed by Petitioner pursuant to a professional services contract, committed the offenses alleged by the Petitioner in its Petition for Dismissal and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was employed by Petitioner pursuant to a professional services contract. Respondent was first employed by Petitioner in 1992. For the school year 1995-96, Respondent was assigned as a special education teacher at John I. Leonard High School, one of the public schools in Palm Beach County. In addition to his teaching duties, Respondent was the coach of the Junior Varsity baseball team. At all times pertinent to this proceeding Respondent was a member of the CTA, the union that represents instructional staff in the Palm Beach County School District. Effective January 18, 1995, the Petitioner adopted School Board Policy 3.26 as a rule. This rule was drafted by James Kelly, an attorney who is employed by Petitioner as the chief of its police force. It was the intent of Chief Kelly to draft a "zero tolerance" rule, prohibiting employees and others from bringing firearms on school property. It was the intent of Chief Kelly in drafting the rule that the employment of any employee who violated that prohibition would be suspended until that employment could be terminated. Rule 3.26 provides, in pertinent part, as follows: It is the intent of this Policy to clearly state that possession of firearms will not be tolerated on School District property. Definitions: "Firearm" means any weapon (including a starter gun or antique firearm) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any destructive device; or any machine gun.1 "Employee" means any person hired by the School Board after completing the personnel procedures required by the School Board. "Independent Contractor" means any person or company other than a School District employee, who provides goods and/or services to the School District and enters into a contracted agreement with the School Board. "Visitor" means any business or personal invitee including, but not limited to, parents, volunteers, family members of School District employees or friends of School District Employees. Any School District employee found to have brought a firearm on School District property shall be subject to suspension and dismissal in accordance with the procedures set forth in School Board Policy 3.27.2 All Contract Agreements with Independent Contractors shall provide that, if any employee of an Independent Contractor or Sub-Contractor is found to have brought a firearm on School District property, said employee will be terminated from the School Board project by the Independent Contractor or the Sub-Contractor. If the Sub-Contractor fails to terminate the employee, the Sub- Contractor's Agreement with the Independent Contractor for the School Board project shall be terminated. If the Independent contractor fails to terminate said employee or fails to terminate the Agreement with the Sub- Contractor who fails to terminate said employee, the Independent Contractor's Agreement with the School Board shall be terminated. Except to the extent allowed by law, any visitor found to have brought a firearm on School District property shall be notified that all subsequent visits to School District property will be by an appointment only, and that visits without prior appointment may result in a criminal action for trespass. This Policy does not apply to any Law Enforcement Officer . . . Article II, Section M of the collective bargaining agreement between the CTA and the School Board, entitled "Discipline of Employees (Progressive Discipline)," 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. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee maybe reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve (12) months of the action/inaction of the employee which lead to the notation. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this agreement. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and the receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with Article II, Section B of this Agreement. Suspension Without Pay. A suspension without pay may be issued to an employee, when appropriate, in keeping with provisions of this Section , including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and the receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement. Dismissal. An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) include either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. At the times pertinent to this proceeding, Respondent had a concealed weapon's permit issued by the Florida Department of State's Division of Licensing. Respondent received instructions and materials when he obtained his concealed weapons permit in Florida that clearly advised him that a concealed weapons permit does not authorize the possession of a concealed weapon on school premises. Respondent knew or should have known that his concealed weapon's permit did not authorize him to carry a firearm on school property. At all times after March 29, 1996, Respondent knew or should have known that school employees were prohibited from bringing firearms on school property. Prior to May 1, 1996, Respondent knew or should have known of the School Board's Rule 3.26.3 Respondent knew or should have known that bringing a firearm on school property would violate this rule. March 29, 1996, was a teacher planning day. On that day Respondent brought on school property a firearm that he had recently purchased so he could show the firearm to Officer Charles C. Edwards, a member of the School Board's police force. Officer Edwards told Respondent he could not have a firearm on school property. As of May 1, 1996, the junior varsity baseball season was over for John I. Leonard High School, but the varsity team was in the post-season playoffs. On May 1, 1996, the varsity team was involved in a game that would eliminate the loser from the playoffs. The game was scheduled to begin at 7:00 p.m. on the campus of John I. Leonard. At the request of the varsity baseball coach, Respondent agreed to scout a potential playoff opponent that was playing a game in Plantation, Florida, at 7:00 p.m. When Respondent left his house on the late afternoon of May 1, 1996, he intended to make a bank deposit prior to going to John I. Leonard High School to pick up the forms that he was to fill out as he scouted the potential opponent. The bank deposit was for the Men's Baseball Association of Palm Beach County and consisted of more than $1,000 in cash and checks. It was Respondent's practice to carry a firearm on his person when he had a large sum of money to be deposited. Consistent with that practice, Respondent took his firearm when he left his house on May 1, 1996, and drove to his bank's drive- in window. At all times on May 1, 1996, pertinent to this proceeding, Respondent had his firearm in a holster. When Respondent first entered his vehicle, he placed the holstered firearm in a fanny pack and placed the fanny pack containing the holstered firearm under the seat of his vehicle. Consistent with his practice, when Respondent got to the line for the drive-in window, he removed the gun from the pouch and placed the holstered firearm in his lap. Because he was running late and the line was moving slowly, Respondent pulled out of the line of cars without making his deposit and headed for John I. Leonard High School to pick up the forms he needed. He clipped the holstered firearm to his belt between his body and his pants at the rear of his right hip. His shirt tail covered the firearm. Respondent also had his cellular phone and beeper clipped to his belt. The cash was in the right front pocket of his pants. Respondent arrived at John I. Leonard High School a few minutes before 6:00 p.m. on May 1, 1996. He parked his vehicle on school grounds in the parking lot near the school gymnasium and approached the gate to the ball field area. Respondent intended to go to the office of the varsity baseball coach to get the forms he needed to scout the game in Plantation. The coach's office was located inside the ball field area above the concession stand. Tickets to the game were sold at a table that was set up at the gate. As Respondent approached the gate, Gary Zaniewski, Jack McLaughlin, and Scott Siegel were present at the ticket table. Mr. Zaniewski was, as of May 1, 1996, the father of a varsity baseball player and served as the president of the John I. Leonard High School Baseball Booster Club. Mr. McLaughlin and Mr. Siegel were school board employees. As Respondent passed by the table, Mr. Zaniewski noticed that Respondent was wearing a firearm and reminded him of that fact. Mr. Zaniewski told Respondent that he did not think it was appropriate for him to have a firearm on school property. Respondent immediately turned around, went back to his vehicle, placed the holstered firearm in the pouch under the seat, and locked the car. He thereafter went to the coach's office, got the forms he needed, and went to Plantation to scout the game. The firearm was in Respondent's vehicle during the few minutes it took him to get the forms from the coach's office. During the time Respondent was on school grounds, he did not remove the firearm from the holster, point it at anyone, shoot anyone or anything, threaten or harm anyone, or engage in any kind of confrontation. While there were members of the baseball team at the field warming up, those players were not in close proximity to Respondent. For the calendar year 1995, there were 169 reported thefts from motor vehicles located on School Board property and 23 motor vehicles stolen from School Board property. The presence of a firearm locked in a vehicle on school property presents a real and immediate danger that Rule 3.26 was enacted to prevent. Respondent testified that he was in a hurry on May 1, 1996, and simply forgot that he had the firearm on his person when he approached the gate to the baseball field. Although there was testimony that a person would not forget he was carrying such a weapon, the testimony of the Respondent is found to be credible. Consequently, it is found that he forgot he had the firearm on his person when he first exited his vehicle on school property on May 1, 1996. There can be little doubt, however, that Respondent was aware that he had a firearm with him when he drove on school property. The Respondent's holster did not have any device to impede unauthorized or inadvertent removal of the firearm. In contrast, the type holsters used by Petitioner's police force requires three separate actions in order for the gun to be removed from the holster. Respondent's careless possession of a firearm that was clipped to his belt in an unsafe holster presented a real and immediate danger that Rule 3.26 was enacted to prevent. Rule 3.26 is a reasonable exercise of the School Board's authority. Despite the events of May 1, 1996, Respondent was given a professional services contract by the School Board for the year 1996-97. On the recommendation of the Superintendent of Schools, the School Board suspended Respondent's employment effective September 19, 1996, and voted to institute these proceedings to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that finds that Respondent violated the provisions of Rule 3.26 as alleged by Petitioner and suspends his employment for a period of one year. DONE AND ENTERED this 1st day of July, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1997.
The Issue Did the Hendry County School Board (Board) have just cause to terminate Respondent from her employment as a paraprofessional teacher's aide?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, Respondent was employed by the HCSD as a paraprofessional teacher's aide at LMS. The employment relationship between the Board and Respondent is subject to the terms and conditions of the Collective Bargaining Agreement Article 8, Section 8.013, Collective Bargaining Agreement, provides that "when an employee has completed three (3) years of the past five (5) with satisfactory service with the Hendry County School Board . . . and has been appointed for a subsequent year, he [sic] will be eligible for continued employment status, which status will continue year to year unless the Board terminates the employee for just cause (Emphasis furnished). Respondent was first employed with the HCSD on August 18, 1986, and worked continuously through May 25, 1999, when she was terminated. Since Respondent achieved "continued employment status," she can only be terminated for "just cause." The Board terminated Respondent for "failure to perform assigned duties in a satisfactory manner" and "other sufficient cause" under School Board Policies and Procedures 218. There were no written evaluations of Respondent's performance accomplished during the first 9 years of Respondent's employment with the HCSD because the Board did not adopt its current policy until approximately 1996. However, there is no evidence that Respondent's work performance was unsatisfactory during the first 9 years of her employment with the HCSD. Respondent worked at LMS for each of those nine years of her employment with the HCSD and was routinely re-appointed for each ensuing year. The first 2 years of her employment, Respondent was assigned to work with students that were classified as "trainable mentally handicapped." Respondent had to assist these students in learning rudimentary skills such as brushing their teeth and changing their underwear. From the fall of 1988 until the spring of 1992, the equivalent of 4 school years, Respondent was assigned to the "Time Out Room." The assignment to the "Time-Out Room" was not punitive in nature, or the result of unsatisfactory work performance by Respondent. Disruptive students that caused a problem in the classroom were sent to the "Time-Out Room." The students went in the "Time-Out Room" for one period after which they usually would return to their regular class. Although Respondent was employed as a "Teacher's Aide" for exceptional education students with special needs she did not assist a teacher, but ran the "Time-Out Room" alone. After 4 years working in the "Time-Out Room," Respondent was assigned to Internal Suspension. The "Time-Out Room" was eliminated, and replaced with Internal Suspension. Internal Suspension was used as a form of discipline for students who violated school policy. Students were sent to Internal Suspension anywhere from 2 to 10 days. Internal Suspension was conducted in a double-wide trailer behind LMS. Respondent again was by herself in Internal Suspension and was not assisting a teacher. The first documentation of any performance deficiency by Respondent consists of a Procedure for Improvement form and a Special Non-Instructional Personnel Evaluation form, both dated January 22, 1996. The forms were prepared by James C. Allen, Principal of the LMS. The Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent achieved a "satisfactory" designation for 6 areas and a "Needs Improvement" in "Quality of Work" and "Work Attitude." The deficiencies specified in the Procedures for Improvement form are: "Harshness in speaking with staff and students, assisting students with academic work, unacceptable activities in classroom, needlepoint, police scanner." The Procedures for Improvement form provided that Respondent had the "95/96 school year" to improve, and that Mr. Allen would "Recommend dismissal" if the deficiencies were not improved. Respondent successfully improved her performance. On March 21, 1996, Mr. Allen wrote a letter to Respondent's union representative, with a copy to Respondent, stating that "I too am optimistic that improvement has occurred." On April 1, 1996, Mr. Allen wrote directly to Respondent expressing concern about "complaints/concerns" received about her conduct on a Beta Club trip to Washington, D.C., but stating, in pertinent part: These concerns cannot be overlooked, however, since we initiated procedures for improvement January 22, 1996, which dealt specifically with harshness in speaking with students/staff. Improvement has been noted. It must also be pointed out that Ms Dankanich (Beta Club sponsor) and some staff members felt that you did a good job in controlling your students and watching out for their safety and welfare. (Emphasis furnished). The March and April 1996 letters from Mr. Allen were included in Respondent's personnel file. Also included in the personnel file were letters from the Beta Club sponsor for the Washington, D.C. trip and a chaperone. These letters stated that Respondent spoke to students and adults and conducted herself in an appropriate manner throughout the trip. Respondent's annual "Overall Evaluation" for the 1995-1996 school year was "Satisfactory." Mr. Allen checked the box entitled "Reappoint based on employee's willingness to improve job dimensions not satisfactory." Respondent attained a "Satisfactory" score on 6 out of eight areas listed for job dimension with "Quality of Work" and Work Attitude" checked-off for "Needs Improvement." Respondent was reappointed and returned to LMS for the 1996-1997 school year. Respondent was assigned to assist with the "trainable mentally handicapped" students after having been on her own in the "Time-Out Room" and Internal Suspension for 8 years and working with Exceptional Student Education (ESE) students. This assignment required an adjustment for Respondent. On February 11, 1997, Allen presented Respondent with another Procedures for Improvement form and Special Non- Instructional Personnel Evaluation form. As in the preceding year, the Special Non-Instructional Personnel Evaluation form indicated that out of 8 areas assessed, Respondent "Needs Improvement" in "Quality of Work" and "Work Attitude." The Procedures for Improvement form identified deficiencies as "failure to perform assigned duties in a satisfactory manner, harshness in speaking with students/staff; unacceptable activities in classroom," and afforded Respondent the 96\97 school year to improve or be recommended for dismissal. Respondent wrote on both forms that she did not agree with them. In April 1997, 12 professional colleagues of Respondent wrote letters of support. These letters were included in Respondent's personnel file. The letters vouch for Respondent's professionalism and many stated that Respondent never was observed to engage in improper conduct or exhibit inappropriate speech or tone of voice. Throughout the second semester of the 1996-1997 school year, Respondent worked 2 class periods as a teacher's aide for Erin Berg-Hayes. Ms. Berg-Hayes was a sixth grade ESE teacher. Ms. Berg-Hayes testified that Respondent's job performance during the 1996-1997 school year was satisfactory. Respondent did not receive annual evaluation for the 1996-1997 school year. Since Respondent was not told otherwise, Respondent assumed she had improved her performance to Mr. Allen's satisfaction. Respondent received a letter of appointment at the end of the 1996-1997 school year and was reappointed for the 1997-1998 school year. For the 1997-1998 school year, the sixth grade students at LMS were moved to the Sixth Grade Center (SGC). Jodi Bell assistant principal at LMS was assigned to administer the SGC. Mr. Allen remained as principal at the LMS which consisted of seventh and eighth grade students. Respondent worked as Erin Berg-Hayes' full-time aide for the 1997-1998 school year. Respondent and Ms. Berg-Hayes were assigned to the SGC. Ms. Berg-Hayes characterized Respondent's job performance during the 1997-1998 school year as "good." When Ms. Bell prepared Respondent's annual evaluation, Ms. Berg-Hayes advised Ms. Bell that she was "pleased" with Respondent's performance and "on the overall [Respondent's] performance was good and satisfactory." Ms. Bell prepared Respondent's 1997-1998 annual evaluation for the 1997-1998 school year. Ms. Bell checked off "satisfactory" in the 8 areas designated for assessment. There were no check marks in the "Needs Improvement" column. On the 1997-1998 annual evaluation, Ms. Bell checked the box for "Satisfactory" as Respondent's "Overall Evaluation," and also checked the box for "Reappoint for next year." In the section entitled "Comments by Evaluator," Ms. Bell wrote: "I have appreciated your willingness to go above what is expected and help wherever help is needed. Keep up the good work!" Respondent returned to the SGC as Ms. Berg-Hayes' Aide in the 1998-1999 school year. Ms. Berg-Hayes and Respondent worked together for the fall semester after which Respondent requested to be reassigned. Respondent attributed this to a personality clash with Ms. Berg-Hayes that started in July 1998. Ms. Berg-Hayes testified that Respondent's performance declined in the 1998-1999 school year. Cathy Lipford, teacher's aide at SGC, who worked together with Ms. Berg-Hayes and Respondent for one period during the entire fall semester in the 1998-1999 school year did not observe a problem with Respondent's work performance. This teachers' aide was aware of some tension between Respondent and Ms. Berg-Hayes. However, this aide testified that Respondent appeared to take the initiative, and assisted students, and the aide never observed Respondent speaking inappropriately to students. Ms. Berg-Hayes did not prepare any documentation of Respondent's alleged performance deficiencies during the fall semester of the 1998-1999 school year. Ms. Berg-Hayes was not consulted about Respondent's performance by Mr. Allen, the former principal of LMS or Mr. Cooper, the current principal of LMS at the time Respondent's performance was evaluated for the 1998-1999 school year, when it was decided to recommend dismissal of Respondent for failure to perform her assigned duties or other sufficient cause. During the spring semester of the 1998-1999 school year, Respondent was assigned as an aide to Dorothy Lomago, a varying exceptionalities teacher for seventh and eighth grade students. Respondent and Ms. Lomago worked together from January 1999 through May 1999. Ms. Lomago had been employed by the Board for 25 years. Prior to Respondent, Ms. Lomago only had had 2 other teaching assistants. Ms. Lomago considers compassion for children and initiative as the most important characteristics for a teacher's aide in special education. Ms. Lomago rated Respondent's performance in those areas as "ineffective." Ms. Lomago considered Respondent adequate in performing clerical tasks such as copying papers and grading papers. Ms. Lomago did not document Respondent's performance deficiencies. Ms. Lomago neither counseled nor corrected Respondent. Likewise, Ms. Lomago never brought to Respondent's attention the things she believed Respondent failed to do or did wrong. Ms. Lomago merely did what she was told to do by Mr. Cooper when he arrived at LMS in March 1999. On March 31, 1999, Respondent went to Mr. Allen's office for her 1998-1999 annual evaluation. R. Scott Cooper, assistant principal, Ms. Jodi Bell, assistant principal, Mr. Allen, and Ms. Davis, assistant principal were present in Mr. Allen's office upon Respondent's arrival. This meeting was terminated after Mr. Allen indicated there was a problem and asked Respondent if she wanted union representation. Respondent replied that she thought it would be wise. Before the meeting on March 31, 1999, Respondent was not aware that her job performance was considered deficient. Respondent had not been told of any deficiencies and had not received any counseling. In March/April 1999, Mr. Allen retired, and was replaced as principal of LMS by Mr. Cooper. Mr. Cooper arrived at LMS some time in the last 2 weeks of March 1999. Respondent and Mr. Cooper had had no professional contact before March 1999. Mr. Cooper met with Respondent on April 16, 1999, for Respondent's 1998-1999 annual evaluation. Mr. Cooper gave Respondent 4 separate Procedures for Improvement forms and an Annual Non-Instructional Personnel Evaluation form. This was Respondent's first notice of her specific performance deficiencies for the 1998-1999 school year. Mr. Cooper never conducted a formal observation of Respondent's job performance. Mr. Cooper based the annual evaluation predominantly on a review of the school board records, and on discussions with Mr. Allen, Ms. Bell, and Ms. Davis. The Procedures for Improvement forms specified the following deficiencies: "Work Attitude - able to successfully work with co-workers and students"; "Initiate Resourcefulness - ability to identify what needs to be done"; ""Dependability"; and "Quality of Work." The forms identified the following means of judging success in overcoming the foregoing deficiencies, respectively. "Supervisors will observe appropriate student/aide interactions in all circumstances"; "decreased necessity for teacher/supervisor to redirect Ms. Bennett's activities"; "Ms. Bennett will demonstrate the ability to effective [sic] facilitate school functions - adhere to work requirements"; and "Higher quality of work - decrease in errors." As a Statement of Assistance Offered, all of the forms provided: "Ms. Bennett may meet with Mr. Cooper weekly to obtain suggestions and assistance" Respondent was given until May 10, 1999, to improve her deficiencies. This was a period of 3 weeks or 15 school days. On Respondent's Annual Non-Instructional Personnel form, Mr. Cooper checked-off 4 out of 8 areas for "Needs Improvement" with "Satisfactory" checked for the remaining 4 areas. Mr. Allen checked "Unsatisfactory" for the "Overall Evaluation" and checked the box "Dismissal." Respondent noted her disagreement with the evaluation. On May 19, 1999, Mr. Cooper formally recommended dismissal of Respondent. Respondent received a Notice of Recommendation of Dismissal on that date. The Board approved Respondent's dismissal on May 25, 1999. During the 3 week period Respondent was given to improve her performance, neither Mr. Cooper nor any other administrator met with Respondent to advise her as to whether she was improving. There is no documentation whatsoever of Respondent's lack of improvement. During the 3 weeks Respondent was to improve her performance, she received repeated assurance from Ms. Lomago that they would be working together the following year. Ms. Lomago never advised Respondent that her performance continued to be unsatisfactory. Likewise, no one from the Board or any school administrator advised Respondent that she was not complying with the Procedures for Improvement or that her work continued to be unsatisfactory. Not hearing otherwise, Respondent considered her work to be satisfactory and did not meet with Mr. Cooper to obtain suggestions and assistance. The evidence does not establish that Respondent failed to perform her assigned duties in a satisfactory manner during the 1998-1999 school year or that the Board had just cause or any other sufficient cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board reinstate the employment of Annette Bennett-Edwards and provide for back pay and benefits retroactive to May 25, 1999. DONE AND ENTERED this 6th of March, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 6th day of March, 2000. COPIES FURNISHED: Edward A. Upthegrove Superintendent Hendry County School District Post Office Box 1980 LaBelle, Florida 33935-1980 Richard G. Groff, Esquire Dye, Deitrich, Prather, Betruff and St. Paul, P.L. Post Office Drawer 9480 Bradenton, Florida 34206 Robert J. Coleman, Esquire Coleman and Coleman Post Office Box 2989 Fort Myers, Florida 33902-2089
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Kenneth Ingber has been employed by Petitioner and assigned under a continuing contract to West Little River Elementary School. During Respondent's 23 years of employment by Petitioner, he resigned/retired twice. He was rehired by Petitioner after each resignation, the last rehiring taking place for the 1985/86 school year. His then-principal, Glenda Harris, hired him with the knowledge that he was an admitted recovering alcoholic. He told her that he was under control. She told him that she would give him a chance but that he would have to meet the expectations that all teachers have to meet. From the 1985/86 school year through the 1990/91 school year, Harris rated Respondent acceptable on his annual evaluations; however, during the 1989/90 school year, Respondent had an attendance problem when he began drinking again. Harris tried to get Respondent to obtain help, but he felt he could do it on his own. He deteriorated during that year but improved during the 1990/91 school year. During the time that Harris supervised Respondent, she had a problem with his not having lesson plans. He felt that he did not need them. For the 1991/92 school year, Respondent came under the supervision of Principal Lillian Coplin. Coplin was never advised of Respondent's alcoholism. On January 29, 1992, Respondent left school early without permission. He also failed to attend a Global Awareness Workshop scheduled for that day. Coplin discussed these failures with him on January 30, 1992. On January 31, 1992, Respondent arrived at work late and left early. The official working hours are from 8:15 a.m. to 3:20 p.m., but Respondent only worked from 9:47 a.m. to 2:50 p.m. On February 7, 1992, Coplin directed Respondent to observe the working hours set by the collective bargaining agreement between the Dade County Public Schools and the United Teachers of Dade (Labor Contract). On February 27 and March 2, 1992, Respondent failed to have lesson plans. On February 27, 1992, Assistant Principal Edith Norniella observed Respondent smoking outside of his classroom, but within view of his students. Prior to that date, Norniella had observed him smoking on school grounds on August 30, 1991, November 14, 1991 and February 18, 1992. On each of these occasions, she told him not to smoke on school grounds. Coplin had also told him several times not to smoke on school grounds. On March 3, 1992, Coplin directed Respondent to adhere to Petitioner's non-smoking rule. Norniella saw him smoking on school grounds at least two more times after that. On March 3, 1992, Coplin also directed Respondent to develop lesson plans according to the Labor Contract. On March 27, 1992, all teachers were given a site directive to turn in parent logs, gradebooks, and daily schedules before leaving for spring-break on April 3, 1992. On April 3, 1992, Respondent reported to work at 9:25 a.m. in spite of the directive given on February 7, 1992. On that same date, Respondent also failed to comply with the directive to turn in parent logs, gradebooks, and daily schedules. Moreover, by April 22, 1992, he still had not complied with that directive. On April 22, 1992, a conference-for-the-record was held with Respondent to discuss his attendance problems and other failures to comply with School Board rules, Labor Contract provisions, and administrative directives. During the conference, he stated that he lost the gradebook but that the principal would not like it anyway. He also admitted that he did not maintain a parent log. Respondent was warned that any further violation of directives would be considered gross insubordination. He was also issued a written reprimand and directed to comply with School Board rules, Labor Contract provisions, and site directives. He was advised of the School Board's Employee Assistance Program (EAP), a program which offers assistance to employees in overcoming personal problems that may be affecting their work. Respondent declined the assistance and treated the matter as a joke by posting the EAP referral on his classroom door. On May 27, 1992, Respondent was formally observed in the classroom by Norniella, using the Teacher Assessment and Development System (TADS). Respondent was rated unacceptable in preparation and planning and in assessment techniques. He did not have lesson plans, student work folders with tests, or a gradebook. It was impossible to assess his students' progress. Respondent was given a prescription to help him correct his deficiencies. Prescriptions are activities which the employee is directed to complete. He was directed to write detailed lesson plans and to turn them in to Norniella weekly. He was to prepare two teacher-made tests and submit those to Norniella for review. He was also to complete some activities concerning assessment techniques from the TADS prescription manual. His prescription deadline was June 16, 1992. On June 2, 1992, Respondent was wearing a "pocket-knife" on his belt. Both Coplin and Norniella considered the pocket-knife to be a weapon in violation of the School Board rule because, although Respondent did not physically threaten anyone with the knife, the wearing of such a knife was intimidating to students and to Coplin. The matter had come to Coplin's attention through a complaint from the parent of a student. In addition, both administrators believed that wearing a knife set a bad example for the students and did not reflect credit upon Respondent and the school system. On June 3, 1992, a conference-for-the-record was held to address the knife incident. Respondent was issued a written reprimand and directed to cease and desist from bringing the pocket-knife to school. He was further advised that any re-occurrence of that infraction would result in additional disciplinary action. On June 5, 1992, a conference-for-the-record was held to address Respondent's performance and his future employment status. During the conference, he admitted to not having had a written lesson plan during the May 27 observation. He was told of the Labor Contract provision which requires weekly lesson plans reflecting objectives, activities, homework, and a way of monitoring students' progress. He was also warned that if he did not complete the prescription from that observation, he would be placed on prescription for professional responsibilities and given an unacceptable annual evaluation. On June 19, 1992, a conference-for-the-record was held with Respondent. He had failed to correct his deficiencies and had failed to complete his prescription. Moreover, he still had not turned in his gradebook, parent log, and daily schedule, as directed on March 3, 1992. He was given an unacceptable annual evaluation because of his deficiencies in professional responsibility. Respondent verbally disagreed with that decision stating that the unacceptable evaluation was for simple paper-pushing requirements. The prescription for professional responsibilities required Respondent to review from the faculty handbook School Board policy on grading criteria, to submit his gradebook on a weekly basis to Coplin, to maintain a gradebook and a log of parent conferences, to maintain daily attendance, to submit student assessment records to Coplin for review prior to submission of the nine-week grade report, and to complete the prescription from the May 27 observation by September 15, 1992. Respondent's annual evaluation for the 1991/92 school year was overall unacceptable and was unacceptable in the category of professional responsibility. On September 20, 1992, a conference-for-the-record was held with Respondent because he was still wearing a "pocket-knife" in spite of the prior directive. He was directed not to wear the knife or the knife case. Respondent stated that he would not do as directed. On October 9, 1992, Respondent was formally observed in the classroom by Coplin and was rated unacceptable in preparation and planning and in assessment techniques. He did not have a lesson plan, student work folders, tests, or a gradebook. It would not be possible to evaluate the students' strengths and weaknesses. Moreover, if an administrator were called upon to explain to a parent why a student got a particular grade, the administrator would not have been able to do so. Respondent was prescribed activities to help him correct his deficiencies. He was directed to write detailed lesson plans and to turn them in to Norniella weekly. He was directed to complete specific activities in the TADS prescription manual dealing with lesson planning and assessment techniques and to prepare two teacher-made tests and to submit all to Coplin for review. The prescription was to be completed by October 30, 1992. By November 13, 1992, Respondent was exhibiting a pattern of excessive and unauthorized absences. The absences were unauthorized because he failed to call the school prior to his absences as required by directives contained in the faculty handbook. He was advised that his absences were adversely impacting the continuity of instruction for his students and the work environment. He was given directives to report his absences directly to the principal, document absences upon return to the worksite, and provide lesson plans and materials for use by the substitute teacher when he was absent. On November 13, 1992, it was noted that Respondent had not met the prescription deadline of October 30, 1992. Coplin gave Respondent a new prescription deadline of November 30, 1992. In addition, she made a supervisory referral to the EAP because of Respondent's excessive absences, unauthorized disappearance from work, poor judgment, and failures to carry out assignments. By the end of November, 1992, Respondent had accumulated 21 absences. While he was absent, there were no gradebook, lesson plans or student folders for the substitute teacher. The substitute teacher was told to create a gradebook, lesson plans, and student work folders. All was in order when Respondent returned to work. On December 11, 1992, Respondent was formally observed in the classroom by Norniella and was rated unsatisfactory in preparation and planning, in techniques of instruction, and in assessment techniques. Because his techniques of instruction were also rated unacceptable, Respondent recognized for the first time that his teaching performance was being criticized. He had dismissed the prior criticisms as simply problems with creating a "paper-work trail". Respondent was rated unacceptable in preparation and planning because he did not have a lesson plan. Norniella gave him a chance to turn in the lesson plans the following Monday, but he failed to do so. Respondent was unacceptable in techniques of instruction because he used the same materials and methods for all students regardless of their individual needs. Respondent failed to establish background knowledge before beginning the lesson. The sequence of the lesson was confusing to Norniella. Respondent covered three different subjects (vocabulary, science, and math), all within a period set aside for language arts. Respondent was given a prescription to help correct his deficiencies. He was directed to write lesson plans and to turn them in to Norniella on Fridays. He was to observe a reading/language arts lesson by another sixth- grade teacher. He was directed to maintain at least two grades per week in each subject for each student. He was also directed to complete specific activities in the TADS prescription manual relating to preparation and planning, techniques of instruction, and assessment techniques. He was directed to complete the prescription by January 15, 1993. He failed to complete any of the prescription activities. On January 4, 1993, a conference-for-the-record was held with Respondent to address his performance and future employment. His absences and reporting procedures were also discussed as was his failure to comply with his prescription and prior directives. During the conference, Respondent was rude, agitated, and disrespectful. He yelled at the principal. His behavior did not reflect credit upon himself and the school system. He treated the conference as a joke. As of January 20, 1993, Respondent still had no gradebook. On January 25, 1993, he was notified that upon his return to the school site, there would be a conference-for-the-record to deal with his noncompliance with the directives to maintain a gradebook and to complete his prescription activities. A conference-for-the-record was held with Respondent on March 3, 1993. It was noted that because of his absences, he had failed to meet the prescription deadline on January 15, 1993. Coplin gave him a new deadline of March 11, 1993. Respondent failed to meet the March 11, 1993, prescription deadline. Moreover, he still had not completed his prior prescription for professional responsibility. Because of these failures, Coplin extended the 1992 professional responsibility prescription through June 1993. On March 26, 1993, Respondent was formally observed in the classroom by Coplin and was rated unsatisfactory in preparation and planning and in assessment techniques. While Respondent had some lesson plans, he did not have one for each subject taught during the day. The student folders contained no tests. Respondent was prescribed activities to help him correct his deficiencies. He was directed to develop weekly lesson plans and to submit them on Wednesdays for the principal to review. He was also to complete an assessment techniques activity from the TADS prescription manual and was to submit the activity to Coplin for review. His prescription was to be completed by April 23, 1993. On April 1, 1993, Respondent was placed on prescription for professional responsibilities for failure to comply with School Board rules, Labor Contract provisions, and school site policies and directives concerning lesson plans, student assessment, record keeping, and maintaining a gradebook. He was directed to develop weekly lesson plans for each subject taught and to submit those to the principal for review. He was directed to read Article X of the Labor Contract and to submit a summary to the principal for review. He was directed to review the section of the faculty handbook concerning maintaining a gradebook. He was directed to maintain an updated gradebook with at least two grades per week per subject and to label the grades. He was directed to maintain a parental conference log in the gradebook. He was directed to submit his gradebook to the principal for weekly review. On May 12, 1993, Coplin advised Petitioner's Office of Professional Standards (OPS) that Respondent had failed to comply with the directive of November 13, 1992, concerning procedures for reporting absences. He had been absent on April 13, 16, 23, 27, and May 5, 6, 7, 10, and 11, 1993, without calling the principal in advance. Respondent claims that he called the school secretary at her home before 7:00 a.m. every time he was absent, except for one time. Although the secretary told him he would have to speak directly to the principal, he chose not to call the school when Coplin was there. Calling the secretary does not absolve him from his responsibility to comply with the principal's directive to speak to her personally. On May 19, 1993, Respondent was sent a letter directing him to schedule a conference at OPS. Respondent did not do so. On that same day, Coplin was advised by EAP that EAP was closing Respondent's case due to his noncompliance with the program. Respondent was absent without authorized leave from April 23 - June 17, 1993. Moreover, he had 106 absences for the school year. Nine of these were paid sick leave, and 97 were leave without pay. The school year has 180 student contact days. Because of Respondent's absences and failure to follow leave procedures, Coplin was not able to secure a permanent substitute teacher. Respondent's students were subjected to frequent changes in substitute teachers and a lack of continuity in their education. Respondent's annual evaluation for the 1992/93 school year was overall unacceptable and unacceptable in the categories of preparation and planning, assessment techniques, and professional responsibility. Because of Respondent's absences, the usual conference-for-the-record could not be conducted, and Respondent's annual evaluation was sent to him by mail. Respondent failed to complete all prescriptions given him by Coplin and by Norniella. By letter dated June 15, 1992, OPS notified Respondent that he was willfully absent from duty without leave. He was given an opportunity to provide a written response and was advised that failure to do so would result in the termination of his employment. On July 6, 1993, a conference-for-the-record was conducted by Dr. Joyce Annunziata at OPS. The conference was held to discuss the pending dismissal action to be taken by Petitioner at its meeting of July 7, 1993. During the meeting, Respondent was extremely disoriented, turned his back on Annunziata, did not take the meeting seriously, made irrelevant comments, carried a stuffed purple animal which he talked to and through, and had watery, bloodshot eyes. He also wore his "pocket-knife" to the conference. Petitioner suspended Respondent and took action to initiate dismissal proceedings against him on July 7, 1993.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Respondent's suspension without pay and dismissing Respondent from his employment with the School Board of Dade County, Florida. DONE and ENTERED this 12th day of January, 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-3963 Petitioner's proposed findings of fact numbered 1, 3-27, and 29-56 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 28 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 1-4 and 7-9 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 5 and 14-16 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed finding of fact numbered 6 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 10-13 have been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: William DuFresne, Esquire Du Fresne & Bradley 2929 S.W. 3rd Avenue, Suite 1 Miami, Florida 33129 Madelyn P. Schere, Esquire Dade County School Board 1450 N.E. 2nd Avenue Miami, Florida 33132 Mr. Octavio J. Visiedo, Superintendent Dade County School Board 1450 N.E. 2nd Avenue Miami, Florida 33132 The Honorable Doug Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Jose R. Bustos (Respondent) committed the acts alleged in the Revised Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on March 6, 2015, and whether the School Board has good cause to terminate Respondent’s employment as a school security monitor.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Braddock High is a public school in Miami-Dade County, Florida. The School Board hired Respondent on September 19, 2001, as a school security monitor assigned to Braddock High, the position Respondent continuously held until the date of the disciplinary action at issue. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. Braddock High is a large school in terms of student population and campus size. Braddock High employs 12 full-time security monitors. While it is common practice to hire a substitute for an absent teacher, Braddock High does not employ a substitute security monitor to replace an absent security monitor. If a security monitor is absent on any given day, the schedules of the other security monitors must be adjusted to avoid a breech in security. Respondent has been documented for poor attendance since April 2006. DECEMBER 4, 2009, MEMORANDUM Manuel S. Garcia has been the principal of Braddock High for the last 13 years. On December 4, 2009, Mr. Garcia issued to Respondent a memorandum on the subject “Absence from Worksite Directive.” From October 2009 to December 2009, Respondent accumulated 13.5 absences1/ of which 7.5 were unauthorized. The 7.5 unauthorized absences were categorized as “Leave Without Pay Unauthorized (LWOP-U)”. The memorandum issued by Mr. Garcia as Respondent’s supervisor, provided, in part, as follows: Because your absence from duties adversely impacts the work environment, particularly in the effective operation of this worksite, you are apprised of the following procedures concerning your future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to a designated site supervisor, Mr. Manuel S. Garcia, principal or Dr. Edward G. Robinson, assistant principal. Absences for illness must be documented by your treating physician and a written note presented to the designated site supervisor upon your return to the site. Your future absences will be reported as LWOU [sic] (unauthorized) until you provide the required documentation to show that you qualify for Family Medical Leave Act (FMLA) or other leave of absence. If it is determined that future absences are imminent, leave just [sic] be requested and procedures for Board approved leave implemented, and the FMLA or ADA requirements, if applicable, must be complied with. These directives are in effect upon receipt of this notice and are necessary to prevent adverse impact to students and their academic progress and to ensure continuity of the educational program and to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities. APRIL 23, 2010, CONFERENCE FOR THE RECORD On April 23, 2010, Respondent was required by Mr. Garcia to attend a Conference for the Record. The purposes of the conference were to address Respondent’s non-compliance with School Board Rule 6Gx13-4A-1.21 (Responsibilities and Duties) and his insubordination to attendance directives. Between January 19, 2010, and April 6, 2010, Respondent was absent 14.5 days without communicating his intent to be absent to the principal or the assistant principal. As part of the conference, Mr. Garcia reiterated in writing to Respondent the directives pertaining to attendance set forth in the December 4, 2009, memorandum. Mr. Garcia advised Respondent that “[a]ny non-compliance with these directives will compel [sic] gross insubordination and will compel further disciplinary measures.” Mr. Garcia provided Respondent with a copy of School Board rules 6Gx13-4A.1.21 (Responsibilities and Duties) and 6Gx13-4E-1.01 (Absences and Leave). Mr. Garcia issued Respondent a referral to the School Board’s Employee Assistance Program (EAP). There was no evidence that Respondent used that referral. For the 2009-2010 school year, Respondent was absent a total of 28.5 days of which 17.5 days were unauthorized. DECEMBER 8, 2011, MEMORANDUM OF CONCERN On December 8, 2011, Mr. Garcia issued to Respondent a Memorandum of Concern addressing his excessive absences. Within less than five months into the 2010-11 school year, Respondent had accumulated 15 absences of which 8 were unauthorized. Respondent was informed that he was in violation of School Board Policy 4430 - Leaves of Absence.2/ Additionally, he was directed to report any future absence to Mr. Medina, the assistant principal. DECEMBER 5, 2012, MEMORANDUM On December 5, 2012, Mr. Garcia issued Respondent another memorandum addressing his absences. Mr. Garcia noted that Respondent had been absent a total of 11 days during the 2012-2013 school year. Respondent’s absence on November 21, 2012, was unauthorized. Mr. Garcia reiterated the directives as to absenteeism he had given to Respondent on December 4, 2009, and April 23, 2010. SEPTEMBER 10, 2013, MEMORANDUM On September 10, 2013, Mr. Garcia issued Respondent another memorandum addressing his absences. Between September 27, 2012, and August 29, 2013, Respondent had 36.5 absences, 19.5 of which were unauthorized leave. Mr. Garcia reiterated the directives as to absenteeism he had given to Respondent on December 4, 2009; April 23, 2010; and December 12, 2012. Mr. Garcia stated to Respondent that he considered Respondent’s actions of failing to abide by the attendance directives to be insubordination. OCTOBER 16, 2013, CONFERENCE FOR THE RECORD On October 16, 2013, Mr. Garcia conducted a Conference for the Record with Respondent to address Respondent’s attendance, his failure to abide by the previously issued directives, and his future employment with the School Board. Between September 30 and October 4, 2013, Respondent was absent without authorization. For three of those four days, Respondent did not notify anyone at Braddock High that he would be absent. Mr. Garcia reiterated the directives he had given to Respondent on December 4, 2009; April 23, 2010; December 12, 2012; and September 10, 2013. Mr. Garcia advised Respondent again that failure to comply with directives would be deemed gross insubordination. Mr. Garcia again provided Respondent with a copy of School Board Policy 4430 - Leaves of Absence. Mr. Garcia provided to Respondent a second referral to the EAP. In addition, Mr. Garcia gave Respondent contact information for four School Board Departments (including the name and telephone number of each department’s director). Those departments were Civil Rights Compliance; Leave, Retirement, and Unemployment; Human Resources – Americans with Disabilities Act; and EAP.3/ On October 18, 2013, Mr. Garcia issued a written reprimand to Respondent based on his absenteeism and his repeated failure to notify administrators in advance of absences. JANUARY 16, 2014, CONFERENCE FOR THE RECORD On January 10, 2014, Mr. Garcia issued to Respondent a Notice of Abandonment based on Respondent’s absence from work for the workweek beginning January 6, 2014, and his failure to communicate in advance with any school administrator about the absences. On January 16, 2014, Mr. Garcia conducted a Conference for the Record to address Respondent’s attendance. Respondent’s unauthorized absence for an entire week and his failure to abide by the previously issued directives prompted the Conference for the Record. Mr. Garcia also discussed Respondent’s future employment with the School Board. Mr. Garcia advised Respondent that the directives that had been repeatedly reiterated to Respondent were still in full force and effect. Mr. Garcia advised Respondent that failure to adhere to those directives would be considered gross insubordination. Mr. Garcia gave Respondent copies of the applicable School Board policies, including a copy of School Board Policy 4430–Leaves of Absence, and 4210-Standards of Ethical Conduct. Mr. Garcia issued Respondent a letter of reprimand. MARCH 12, 2014, CONFERENCE FOR THE RECORD Following the written reprimand in January 2014, Respondent was absent without authorization on six consecutive school days in February 2014. On March 12, 2014, Carmen Gutierrez, the district director of the Office of Professional Standards, conducted a Conference for the Record with Respondent because of Respondent’s history of absenteeism and his unauthorized absences in 2014. Ms. Gutierrez issued to Respondent the same directives Mr. Garcia had repeatedly issued to Respondent. Ms. Gutierrez informed Respondent that his failure to follow directives constituted gross insubordination. The Summary of the Conference for the Record contains the following: You were given the opportunity to respond to your excessive absenteeism. You stated that you had a family problem, a family member that was sick and you were helping them [sic] out. Ms. Hiralda Cruz-Ricot spoke on your behalf stating that you had been diagnosed with fibromyalgia and it impedes your ability to do things. She added that you were recently diagnosed and are not undergoing treatment. Ms. Cruz-Ricot said that you would be producing doctor’s notes since Mr. Garcia remarked that he had only received one doctor’s note dated October 18, 2013 from Broward Psychological Services. MAY 7, 2014, SUSPENSION At the School Board meeting on May 7, 2014, the School Board took action to suspend Respondent without pay for fifteen workdays for just cause, including, but not limited to: gross insubordination, excessive absenteeism, non-performance and deficient performance of job responsibilities, and violation of School Board Policies 4210-Standards of Ethical Conduct, 4210.01-Code of Ethics, 4230–Leaves of Absence. Respondent was notified of the Board’s action via a letter dated September 4, 2014. JUNE 3, 2014, NOTICE OF ABANDONMENT Respondent was due back from his suspension on May 29, 2014. Respondent failed to show up for work on May 29th, May 30th, June 2nd, and June 3rd. Respondent was mailed another Notice of Abandonment. Respondent provided no explanation for his leave. At the beginning of the following school year on August 19, 2014, Mr. Garcia reiterated the directives as to absenteeism that had been repeatedly given to Respondent by Ms. Gutierrez and by Mr. Garcia. OCTOBER 28, 2014, CONFERENCE FOR THE RECORD Respondent failed to report to work for four consecutive school days beginning September 29, 2014. As a result, on October 28, 2014, Ms. Gutierrez conducted a Conference for the Record with Respondent to address Respondent’s absenteeism, gross insubordination, non-performance and deficient performance of job responsibilities and violation of School Board Policies 4210-Standards of Ethical Conduct, 4210.01-Code of Ethics, 4230–Leaves of Absence. On December 9, 2014, Respondent received a letter informing him that the Superintendent of Schools would be recommending that the School Board suspend Respondent’s employment without pay and initiate proceedings to terminate that employment. At its regularly scheduled meeting on December 10, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate his employment. FAILURE TO COMMUNICATE In addition to the excessive absenteeism set forth above, between October 2009 and December 2014, Respondent repeatedly failed to communicate in advance with any administrator that he would be absent on days he failed to appear for work. DEPRESSION Respondent’s only exhibit was a letter from Dr. Maribel Agullera, a psychiatrist. This letter confirms that Respondent has been diagnosed with “Mayor Depressive Disorder, Recurrent, Moderate” and “Alcohol Dependence.” The exhibit also confirms that Respondent is on medication. Respondent testified, credibly, that he was diagnosed with depression before 2001, the year he first started working at Braddock High. Respondent testified he has suffered from depression for most of his adult life and that all of his absences were related to depression. There was no other evidence to support the contention that Respondent’s repeated absences should be attributed to depression. In the absence of competent medical evidence to support Respondent’s contention, the undersigned declines to find that Respondent’s excessive absenteeism and his failure to appropriately communicate with school administrators over a five-year period was attributable to depression.4/
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: It is RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Jose R. Bustos. DONE AND ENTERED this 11th day of May, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 11th day of May, 2015.
