The Issue Whether Petitioner, St. Lucie County School Board (Petitioner or School Board) has just cause to discipline Wendy Portillo's employment based on the conduct alleged in the “Statement of Charges and Petition for One Year Suspension Without Pay and Return to Annual Contract” and the appropriate penalties, if any.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in St. Lucie County, Florida. Petitioner has entered into individual contracts and collective bargaining agreements with the teachers it employs and has adopted rules and policies that control the activities of its teaching professionals. At all times relevant to this proceeding, Respondent was a teacher employed by Petitioner pursuant to a professional services contract and assigned to teach kindergarten at Morningside. On May 21, 2008, Respondent was teaching kindergarten in her classroom at Morningside. The door to Respondent’s classroom is across a hall from the door of the school office. Typically, kindergarten students are five or six years old. Student 1, a male, was one of 17 students in Respondent’s class on May 21, 2008. Student 1 was assigned to Respondent’s class in January 2008. Shortly after his placement in her class, Respondent asked Mr. Graff to help her with Student 1 because of Student 1’s behavior. Mr. Graff works in Morningside’s fourth grade alpha class. The alpha program is designed to identify and assist at-risk third grade students who are having difficulties at home or at school. Mr. Graff has the assistance of a full- time counselor and a full-time paraprofessional. Mr. Graff agreed to help with Student 1 as needed. Student 1 came to Mr. Graff’s classroom on approximately 12 occasions between January and May 21, 2008. In mid-February 2008, Respondent requested a Child Study Team for Student 1, which is the first step in determining whether a student meets the eligibility requirements for services from Petitioner’s Exceptional Student Education (ESE) program. This development is part of an on-going process.3 The Child Study Team, of which Respondent was a member, developed strategies designed to redirect Student 1’s behavior. One of the strategies was a reward system utilizing tokens. On May 21, 2008, Respondent’s kindergarten class began at 8:20 a.m. At 9:00 a.m. Respondent’s kindergarten class, including Student 1, went to a performance by the fifth grade that ended at approximately 9:45 a.m. The students returned to Respondent’s classroom at approximately 10:00 a.m. At approximately 10:30 a.m., while she was teaching her class, Respondent observed that Student 1 was off-task and was being disruptive to the other students by flipping crayons at his classmates and crawling under a table. Student 1 pushed up on the table, where other students were trying to work. Respondent attempted to redirect Student 1, but she could not do so. Respondent summoned Officer Black (the school resource officer) to come to her room. Officer Black assisted in getting Student 1 out from under a table and took him to the office. After Officer Black had escorted Student 1 to the school office, Ms. Gascoigne (the assistant principal) counseled Student 1 as to appropriate versus inappropriate behavior. Student 1 told Ms. Gascoigne that he realized what he had done was wrong and that he wanted to say to Respondent that he was sorry. After keeping Student 1 in the office for approximately 15 minutes, Ms. Gascoigne sent Student 1 back to Respondent’s classroom. There was a dispute in the record as to whether Respondent sent a written referral to the office when Officer Black escorted Student 1 to the office at approximately 10:30 a.m. The office did receive a written referral from Respondent on May 21, 2008, pertaining to Student 1’s misbehavior. The inference was that pursuant to School Board Policy 5.33, which pertains to removal of students from a classroom as opposed to a disciplinary referral of a student for misbehaving in class, the office personnel should have detained Student 1 for a longer period of time than 15 minutes if Respondent had sent a written referral with him. The greater weight of the credible evidence established that School Board Policy 5.33 is inapplicable due to Student 1’s level of disruption. Moreover, the greater weight of the evidence established that Ms. Gasciogne did not receive the written referral until the afternoon of May 21, 2008, after the occurrence of the events at issue in this proceeding. When she had Officer Black take Student 1 to the office at approximately 10:30 a.m. on May 21, 2008, Respondent did not ask Ms. Gascoigne or anyone else in the office to detain Student 1 for a particular length of time. When Student 1 returned to her classroom, Respondent was in a meeting area where the students were gathered for group instruction. Respondent asked Student 1 why he had returned to the classroom. Student 1 responded to the effect that Ms. Gascoigne had sent him back. Referring to herself and to the other students in her class, Respondent responded to the effect that, “I don’t know if we are ready to have you back at this time.” After making that statement, Respondent directed Student 1 to join her in front of his classmates. Respondent asked Student 1 why he had done the things he had done earlier that morning. Student 1 shrugged his shoulders. Respondent told Student 1 that shrugging his shoulders was not an answer and that he should use his words. Three or four students began saying things about how Student 1 had behaved. Respondent asked Student 1 to listen to his classmates and asked him how what they were saying made him feel. Referring to herself and to the other students, Respondent stated that she did not think we are ready for you to come back at this time. Respondent then announced that she was going to poll the class as to whether Student 1 could rejoin them. Respondent explained to the class that a poll was like taking a vote. Respondent asked each of Student 1’s classmates to verbally vote yes or no whether Student 1 should remain in the classroom and gave each student the opportunity to explain his or her vote. Respondent tallied the votes on the chalk board. The final vote was 14 for removing Student 1 and two for allowing him to remain.4 Respondent thereafter sent Student 1 back to the office. Respondent made the ultimate decision to exclude Student 1 from her classroom, but in making that decision she considered the votes that had been cast by Student 1’s classmates. The reward system utilizing tokens was in place for Student 1 on May 21, 2008. There was insufficient evidence to establish that Respondent utilized the reward system or any other strategy, including the use of Mr. Graff’s class, that had been developed for Student 1 before sending him to the office on the first occasion or before removing him from her class after the classmates had cast their votes and made statements about his behavior. When Student 1’s mother came to pick Student 1 up from school on the evening of May 21, 2008, she told Respondent that she had embarrassed her son and that he was disabled and autistic. Respondent apologized to Student 1’s mother. Student 1 was with his mother when she made the quoted statement to Respondent and when Respondent apologized. When asked by his mother how he felt, Student 1 said he felt sad. Except for her conduct on the May 21, 2008, incident described above, Respondent has had a positive 12-year career as a teacher at Morningside. Respondent testified that at no time did she intend to harm, embarrass, or do anything negative to the student. Respondent further testified that she did not, at the time think she was hurting anyone. She believed that she could show all of her students that there are consequences to actions and to show that actions may affect others. Respondent testified, credibly, that early childhood education is her “passion” (as she termed it at Transcript, Volume III, page 275, beginning on line 11). Petitioner’s investigative report reflects (beginning on page 13 of Petitioner’s Exhibit B) the following: There is no evidence that Ms. Portillo’s conduct was malicious or intended to cause harm or embarrassment to Student 1. However, there is a question as to whether Ms. Portillo exercised the best professional judgment during the incident under investigation. . . . Immediately following the incident of May 21, 2008, Petitioner prohibited Respondent from returning to Morningside. Petitioner assigned Respondent to the School Board office with pay while Petitioner investigated the matter. On November 14, 2008, Mr. Lannon made his recommendation to the School Board. The recommendation was that Petitioner suspend Respondent for a period of one year dating from the School Board’s final order and that her contract be changed from a Professional Services Contract to an Annual Contract. At its meeting of November 14, 2008, the School Board suspended without pay Respondent’s employment for a period of one year and voted to change her contract from a Professional Services Contract to an Annual Contract should she return to employment with the School Board.5 The greater weight of the credible evidence overwhelmingly established that Respondent’s conduct on May 21, 2008, described above is properly characterized as misconduct as that term is generally understood. As will be discussed below, Petitioner established that Respondent’s conduct on May 21, 2008, violated the Code of Ethics of the Education Profession in Florida and the Principles of Professional Conduct for the Education Profession in Florida, thereby violating the provisions of subsection (xxix) of School Board Rule 6.301(3)(b), as alleged in paragraph 18 of the Petition. Petitioner established that Respondent’s misconduct on May 21, 2008, violated subsection (xxxi) of School Board Rule 6.301(3)(b) as alleged in paragraph 18 of the Petition by exposing Student 1 and the other students in her class to unnecessary embarrassment or disparagement. Petitioner established that Respondent utilized an inappropriate method of discipline in removing Student 1 from her class after the class vote, thereby violating subsection (xxxvii) of School Board Rule 6.301(3)(b), as alleged in paragraph 18 of the Petition. Petitioner failed to establish that Respondent was abusive or discourteous in violation of subsection (ix) of School Board Rule 6.301(3)(b) as alleged in paragraph 18 of the Petition. Mr. Lannon, Ms. Ranew, Ms. Gascoigne, and Ms. Cully are experienced educators with supervisory responsibilities. Each opined that Respondent had violated the Code of Conduct for the Education Profession and explained the reasons for those opinions. Petitioner established that Respondent failed to exercise the best professional judgment on May 21, 2008, as alleged in paragraph 19a of the Petition. The alleged violation set forth in paragraph 19b will be discussed below. Petitioner failed to establish that Respondent’s misconduct was unethical and, consequently, failed to establish the violation alleged in paragraph 19c of the Petition. Petitioner established that Respondent failed to make reasonable effort to protect Student 1 from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety as alleged in paragraph 19d of the Petition. Petitioner established that Respondent failed to make reasonable effort to protect Student 1 from harassment as alleged in paragraph 19(e) of the Petition. Petitioner has charged Respondent with “misconduct in office.” There is a difference between the generally used term “misconduct” and the term “misconduct in office.” The State Board has defined the term “misconduct in office” by Florida Administrative Code Rule 6B-4.009(3), as follows: (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system. While there can be no meaningful debate as to whether Respondent's conduct should be characterized as “misconduct,” there was a dispute as to whether Respondent’s effectiveness in the school system had been impaired, thereby establishing that Respondent was guilty of “misconduct in office” as alleged in the Petition. This incident received extensive coverage by the local, national, and international press. Locally, Petitioner received a high volume of written communications and telephone calls in response to Respondent’s conduct. Some communications supported Respondent’s conduct while others condoned Respondent’s conduct. The communications condoning Respondent’s conduct far outweighed the responses supporting her conduct.6 Petitioner received requests from parents that Respondent not be allowed to teach their students should she return to class. In addition to the negative publicity and negative communications generated by her conduct, Respondent’s principal has lost confidence in her. Ms. McCully testified as follows in response to questions from Petitioner’s counsel (Transcript, Volume III, beginning at page 371, line 17): Q. After the May 21, 2008, incident involving Ms. Portillo, would you recommend that she be hired as a teacher in your school? A. No, I would not. Q. Why is that? A. Personally, I feel that I would not have that rapport, trust, with her and be able to work with her after this. Dr. Lannon testified as follows in response to questions from Petitioner’s counsel (Transcript, Volume I, beginning at page 106, line1): Q. In your opinion, has Ms. Portillo’s actions on May 21, 2008, resulted in a loss of her effectiveness. A. I believe so. Q. How do you reconcile that with your recommendation that she can go back to work after a one-year suspension without pay? A. I came to that with great pain. I believe that the actions that Ms. Portillo undertook actually rose to the issue of termination. But also, in a sense of fairness, Ms. Portillo is a twelve-year employee who has contributed to the lives and the well-being of children in St. Lucie County. My sense on this was that while there is a price to pay – and I believe that the action of not protecting children is literally the most serious thing we can do in a negative way – that her past career would warrant a second chance, but not in the environment in which she had willfully created these series of steps leading to the involvement of a particular child in what I believe to be an embarrassing and disparaging way and the involvement of the class in a way that we may never know. Q. Did you consider terminating Ms. Portillo? A. I did. Q. And is it my understanding that you’re saying the fact that she had twelve positive years mitigated that decision. A. Yes. That’s exactly correct. Q. And that led you to the recommendation that’s at issue? A. That’s exactly right. On cross-examination, Mr. Lannon testified in response to questions by Respondent’s counsel (Transcript, Volume II, beginning on page 149, line 25): Q: And you’re of the opinion as you sit here today, Mr. Lannon, under no circumstances . . . that you would allow [Respondent] to teach elementary school children in St. Lucie County. I would not put her in pre-K through fifth grade. That’s the definition. So that would be correct. In his testimony at the formal hearing and in his letter of November 3, 2008, Mr. Lannon described the mitigating circumstances he considered in contemplating his recommendation to the School Board. The following, taken from Mr. Lannon’s letter, succinctly states those considerations: I have also considered mitigating circumstances. You have had a long (12 years) and positive career in St. Lucie County Public Schools. Your annual evaluations, conducted by five Principals over 12 years are positive. Behavior of young students, in groups such as classrooms, is often difficult and professionally demanding. The official investigation states “there is NO evidence that Ms. Portillo’s conduct was malicious or intended to cause harm or embarrassment . . . “ [Emphasis in the original.] Except for the conduct at issue in this proceeding, Respondent has been an excellent, dedicated teacher during her 12-year tenure at Morningside. She has spent a considerable amount of her personal time working on an extra-curricular activity named Odyssey of the Mind. Many of the employees at Morningside and parents of former students are supportive of Respondent. As to those employees and parents, Respondent’s reputation remains intact despite the negative publicity regarding the conduct at issue.7 The greater weight of the credible evidence clearly established that Respondent’s conduct on May 21, 2008, has impaired her effectiveness in the system. Petitioner established that Respondent’s conduct on May 21, 2008, constitutes “misconduct in office” within the meaning of Florida Administrative Code Rule 6B-4.009 and, consequently, constitutes grounds for the suspension of her employment pursuant to Section 1012.33(6)(a), Florida Statutes, which provides, in relevant part, that the employment of a teacher with a professional services contract can be terminated or suspended for just cause, which is defined to include “misconduct in office” as defined by State Board rules. Section 1012.33(4)(b), Florida Statutes, provides, in relevant part, as follows: (b) Any . . . member of the instructional staff . . . may be returned to annual contract status for another 3 years in the discretion of the district school board, at the end of the school year, when a recommendation to that effect is submitted in writing to the district school board on or before April 1 of any school year, giving good and sufficient reasons therefore . . .. In explaining the rationale for his recommendations, Mr. Lannon testified as follows in response to questions from counsel for Respondent as to his recommended disposition of this matter (beginning at Transcript, Volume II, page 133, line 15): Q. What would happen in the one year that would allow her, from the year that you’re recommending that she be suspended to the year that she, if your recommendation is accepted, that she would come back to work for the School Board, what would happen in that year that would change the alleged loss of respect and confidence in her colleagues first? A. It might not. Q. Your same answer would be as it relates to students? A. Yes, sir. Q. And the parents. A. That’s correct. I have no knowledge of how they would feel. Q. So in essence, you’re allowing, you’re recommending that a person that you’re not sure would be respectful [sic] or confident [sic] by teachers, students, parents, and members of the community, you’re recommending that that person still work for the St. Lucie County School Board. A. I’m allowing that the 12 years prior to May 21, 2008, mitigated my thinking that said this person is deserving of another chance at some point in time. Q. And this chance that you’re talking about is not a chance of great risk or harm if I follow your logical conclusion; is that correct. A. If you look at it more fully, you’ll see that I would not allow her to teach at that grade level in an elementary school again. And there is a difference in the ability of students to be able to discern the words of adults as they age. And I’m going to bank on the fact that the quality that Ms. Portillo had previously shown, absent her actions on that day, which I believe to be premeditated and well thought out, even though they were quick, would not occur again. There can be little doubt that Respondent has been traumatized by the negative reactions to her misconduct.8 Respondent and her family have suffered economically as a result of her suspension. Respondent apologized to Student 1’s mother and testified that she is remorseful.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order uphold the suspension of Respondent’s employment for a period of one year from November 18, 2008, and provide for the change of her contract status from a Professional Services Contract to an Annual Contract, contingent upon the availability of a position for which Respondent is qualified and certified. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2009.
The Issue The issues in this proceeding involve Petitioners' challenge, pursuant to Section 120.54(4), Florida Statutes, of the proposed adoption by the School Board of school attendance boundaries and attendant policy changes for implementation beginning with the 1981-82 school year. Initially, Petitioners challenged both the proposed zones for high and elementary schools. However, during the pendency of this proceeding, Respondent withdrew the proposed attendance zone changes for elementary schools, thereby rendering issues related thereto moot, and leaving only the high school boundaries for further consideration. In summary, Petitioners claim that the proposed rule amendments, including maps prepared in conjunction therewith, are an invalid exercise of delegated legislative authority by virtue of the School Board's failure to comply with procedural and substantive requirements of Chapter 120, Florida Statutes. Petitioners allege that deficiencies exist in procedures utilized by the School Board prior to publication of its notice of intent to adopt the proposed rules, in the advertisements and economic impact statement prepared in conjunction with the proposed rule amendments, and in the allegedly arbitrary and capricious nature of the Proposed changes from current attendance boundaries. Petitioners further claim that the School Board's announced intention to utilize student race as a factor in drawing attendance zones is unconstitutional and beyond the School Board's delegated legislative authority. The Respondent contends that each of the Petitioners is without standing to maintain this rule challenge pursuant to Section 120.54(4), Florida Statutes; that the preadvertisement procedures followed by the School Board are not jurisdictional insofar as this present proceeding is concerned; that any deficiencies in the legal notices or economic impact statement constitute harmless error; and that the proposed rules are a valid exercise of legislative authority delegated to it in Sections 230.23(4) and 230.232, Florida Statutes.
Findings Of Fact The School Board of Leon County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Leon County, Florida. Respondent is required by statute to promulgate rules and regulations establishing attendance zones for grades Kindergarten through 12, and has proposed for adoption certain amendments to its existing rules which will have the effect of changing attendance boundaries for middle and high schools located in Leon County, Florida. On May 5, 1981, the School Board withdrew previously advertised plans to adopt modified attendance boundaries for the 1981-82 school year, but announced its intention to continue its rezoning efforts. The School Board held a workshop meeting to discuss rezoning on May 14, 1981. This meeting was noticed in the legal advertisement section of the Tallahassee Democrat on that same date. Action on rezoning was taken at the meeting, and the meeting was recessed until the evening of May 18, 1981. No formal notice of the recessing of the May 14 meeting or the reconvening of that meeting on May 18 was published in any newspaper. On May 18, the May 14 workshop was reconvened. At this meeting the public addressed questions to the School Board members and staff. The Board announced at this meeting that it would discuss the matter further at its regular meeting the following night, May 19, 1981, and that the general issue of rezoning was already on the agenda for the May 19 meeting. The School Board also directed the Superintendent to "take administrative steps as are necessary to schedule a special meeting of the Board pursuant to provisions of Section 230.16, Florida Statutes." This reconvened meeting held on the evening of May 18, 1981, was the subject of an article in the May 18, 1981, edition of the Tallahassee Democrat, which carried a news article reporting on rezoning under the headline, "The rezoners are feeling the pressure." This newspaper article included a special separated section entitled "Meeting is Monday," which directed the public's attention to the time and location of the workshop meeting that night. Toward the end of the regular School Board meeting on May 19, 1981, the School Board recessed and subsequently reconvened to discuss rezoning. The School Board held an extensive discussion on various topics related to rezoning, and responded to questions from the public. Two subsequent meetings were then scheduled. The first was a workshop meeting on rezoning to be held on May 25, 1981, and the second was a meeting scheduled for May 26, 1981, to direct the Superintendent to advertise the proposed modified school attendance boundaries. On May 20, 1981, in the Special Notice section of the Tallahassee Democrat, an ad appeared noticing a "special meeting" of the School Board at Belle Vue Middle School on May 26, 1981, beginning at 7:00 p.m., to discuss rezoning. On May 21, 1981, in the Legal Advertisement section of the Tallahassee Democrat, an ad appeared noticing a "special emergency meeting" at Bond Elementary School beginning at 5:00 p.m. on May 26, 1981, to deal with rezoning, which notice indicated that the meeting time and place was a rescheduling of the meeting previously set for Belle Vue Middle School. The May 25, 1981, workshop meeting was noticed in a legal advertisement in the Tallahassee Democrat on May 22, 1981. In a news article on rezoning published on Sunday, May 24, 1981, in the Tallahassee Democrat, which article was entitled "Rezoners can't find all the answers," the purpose, times and locations for both the May 25 workshop and the May 26 special emergency meeting were contained in a special section set off from the remainder of the article. The Petitioners challenging the modification of the high school attendance boundaries in this proceeding testified that they were each present at the May 26 meeting. At the School Board meeting on May 26, 1981, there were approximately forty to fifty members of the public in attendance. Members of the public addressed the School Board during the meeting. Several modifications were made to the maps and the language of the proposed rule amendments at this meeting. At the conclusion of the meeting, the Superintendent was directed to initiate in accordance with Chapter 120, Florida Statutes, the adoption of modified school attendance boundaries and associated language changes in as expeditious a fashion as possible. On June 3, 1981, four legal advertisements pertinent to this proceeding, each entitled "Notice of Intent to Adopt a Rule," appeared in the Legal Notices section of the Tallahassee Democrat. These notices were titled 6GX37-3.02(1) High School; 6GX37-3.02(1) Middle School; 6GX37-3.02(1) Elementary School; and 6GX37-3.02 Assignment of Pupils. Under the economic impact portion of the four advertisements is the phrase, ". . . [p]arents of students who elect to be grandfathered are responsible for transportation and the costs associated with that responsibility." The maps containing the proposed high school attendance boundaries are Respondent's Exhibits 8(d) High School City Map, and 8(e) High School County Map. The two high school maps were referenced in the legal advertisement denominated 6GX37-3.02(1) High Schools. By its actions, the School Board proposes to amend Rule 6GX37-3.02(1) to read as follows: The Establishment of Schools. All public schools operated by the School Board of Leon County, Florida, shall be for its residents and for such other students as may be authorized by the Board and shall be fully desegregated. The School Board shall from time to time promulgate atten- dance zones so that each school will serve those students residing in each such zone. The Board shall also establish student capacities for, and grades served by, each school in the county, which may be modified by the Board as required. Maps showing the attendance zones applicable to each school, including grades served by each school, shall be maintained in the Office of Student Services and shall be available for public inspection. The School Board also proposes to amend Rule 6GX37-3.02(2) to add the following provision: Grandfathering. The following standards shall be for grandfathering certain students, provided that their residence remains unchanged, in order to preserve educational continuity. Once a student has indicated his or her choice, in writing, changes may be made through application to the Board Reassignment Subcommittee. The Board shall, upon request, allow students who were enrolled in a high school during the 1980-81 school year to remain at that same high school if the new zones for the 1981-82 school year put them in the attendance zone of a different high school so long as the parents shall be responsible for all necessary transportation. (Emphasis added). The School Board is not presently under any federal or state mandate to rezone the school system in Leon County. The School Board is, therefore, performing a purely discretionary function in undertaking its current rezoning effort. Respondent's express purpose in rezoning Leon County high schools for the 1981-82 school year is . . . to make more effective use of school facilities and to seek greater racial balance among the four high schools." In the preparation of school attendance boundaries the School Board, for statistical purposes, divided Leon County into a large number of small geographical areas called "study areas" or "study zones." The number of students residing in each study area was determined by both race and grade level, and this information was then placed in a computer to establish an accurate baseline of current attendance data for making various enrollment projections. In connection with the proposed zoning changes, the School Board administrative staff attempted to bring current and make as accurate as possible the data used in the rezoing process. Current enrollment figures at the high school level were updated through April 8, 1981. In making the various projections based upon available data, the School Board, through its consultant, used "cohort survival rates," a student projection technique developed by the Florida Department of Education for use throughout the state by school districts considering modification of school attendance boundaries. It is recognized that, although this projection technique is commonly accepted, it is subject to the normal errors inherent in any such predictive technique. On February 3, 1981, the School Board adopted five of eight criteria recommended by the Superintendent to be considered in drawing new attendance boundaries. These criteria, although never formally adopted as "rules," were used by community volunteers, staff, consultants, and ultimately the School Board itself in the development of the maps delineating the proposed new attendance boundaries. These criteria are as follows: * * * That the concept of neighborhood schools be adhered to in the revision of the attendance areas, but that non-contiguous attendance areas be allowed where necessary to achieve the desired racial composition. That natural boundaries be used to define attendance areas insofar as it is possible, avoiding duplicate transportation service on individual roadways. That the minority enrollment in any school be not more than 10 percent above or 10 percent below the percent of minority enrollment in that school level in the county as a whole, excluding Chaires, Concord, Fort Braden and Woodville Elementary Schools. That rising 5th, 8th and 12th grade students, on request, be permitted to continue in attendance if their resi- dence is placed in another school attendance area, with any needed transportation being provided by the parent and not the School Board (an exception to this rule should be made for students whose school of atten- dance was changed by the School Board in August, 1980, and transportation be provided at district expense in the event that the attendance areas affecting them are changed this year and the parents desire to have their children continue to attend the school they are attending in 1980-81). That the transportation needed to accomplish the desired racial compo- sition of each school be provided in as efficient and cost effective manner as possible, consistent with Florida Laws and Regulations, and School Board policy on hazardous areas. (Emphasis added). There are four high schools in Leon County: Leon, Godby, Rickards and Lincoln. Enrollment figures for the four high schools, as of April 8, 1981, are as follows: Leon, 1,690; Godby, 1,430; Lincoln, 1,664; and Rickards, 928. White students attending each of the four high schools comprise the following percentages of the total student body: Leon, 78 percent; Godby, 64 percent; Lincoln, 73 percent; and Rickards, 49 percent. The recommended capacities for the high schools in Leon County, based upon the School Plant Survey of Leon District Schools conducted by the Florida Department of Education, are: Leon, 1,644; Godby, 1,556; Lincoln, 1,704; and Rickards, 1,465. In designing the proposed attendance boundaries for the 1981-82 school year, the School Board's consultant used a recommended enrollment figure supplied to him by the School Board staff. This recommended enrollment figure was not the same as the physical plant capacity figure. These recommended enrollment figures were, however, closely related to plant capacities, any differences between the two figures being reflective of various other program considerations. The most reliable prediction of future enrollments at the various high schools, which takes into account the estimated effect of grandfathering under the proposed amendments, reveals that for the first three years in which the proposed school boundaries are to be in effect, anticipated enrollments will be within the physical plant capacities of the various high schools. In addition, under the proposed zone changes, the racial composition of the student populations at each of the four high schools is projected to be within the 10 percent criteria established by the School Board by March of 1984. Rickards is the only high school in Leon County which does not presently meet the plus-or- minus 10 percent racial composition criteria. However, as indicated above, according to the School Board's projections, Rickards should meet that criteria during the 1983-84 school year. The greater number of students assigned to Rickards under the proposed zoning changes will make use of available and currently unused space, and, because of increased student enrollment, the diversity of course offerings should also increase. This is so because the amount of funds allocated to a given school is directly related to the number of students enrolled. Thus, for an under-enrolled school such as Rickards, fewer funds are generated under the statewide funding formula for that facility, which, in turn, may result in fewer programs being offered to students. There are, in fact, some courses not presently offered at Rickards that are available in other county high schools, due, at least in part, to under-enrollment at Rickards. The record in this proceeding does not establish with absolute certainty the total number of students either eligible for or expected to exercise the grandfathering option for the 1981-82 school year. However, a poll conducted by the School Board indicates that from 90 percent to 100 percent of students eligible for grandfathering will exercise that option, and estimates of potential school enrollments are partially based on that assumption. In fact, all student petitioners in this proceeding eligible for grandfathering testified that they would take advantage of that option. The reasons for this choice generally dealt with current school activities and friendships, and was consistent with the policy expressed by the School Board "to preserve educational continuity." The economic impact of the grandfathering provision on parents required to furnish transportation as a result of electing that option was not addressed quantitatively in the School Board's Economic Impact Statement. With regard to this cost factor, the Economic Impact Statement provided that: Current Board policy provides that bus transportation will be provided by the district if the residence of the parent is more than two miles from the assigned school. None of the proposed rule amendments modify this basic policy; however, the policy changes in 3.02 allow for the "grandfather- ing" of students in certain grade levels subject to the requirement that the parents provide all necessary transportation. To the extent that a parent voluntarily chooses to assume that responsibility, that parent may incur associated costs such as gas and oil. There is no indication in this record that the School Board considered the potential cost and feasibility of providing transportation at School Board expense to those students choosing the grandfather option who live two or more miles from the "grandfathered" school. Testimony at the final hearing estimated transportation costs of $367.20 based upon an average driving distance between a student's home and school of 5.1 miles (based on the length of the average bus route), full attendance for the full 180 student school days, and a 20 cents- per-mile cost, which is the current state reimbursement rate for travel by automobile. Naturally, actual transportation costs would vary substantially, depending upon the type of vehicle driven, the number of students transported, the student's actual attendance pattern, carpooling, travel routes, and other associated factors. The parents' responsibility to assume these transportation costs in the event of electing tee grandfathering option is pointed out both in the rule advertisements and the Economic Impact Statement. The School Board has other existing policies which allow a student to attend a school different from that to which he is assigned based upon the location of his residence. These include the School Board's majority/minority transfer policy and instances in which a student requests to attend a special program at another school which is not available at his assigned school. In all such cases, the School Board requires that the student or his parents provide transportation at their own expense. The Economic Impact Statement prepared by the School Board in conjunction with the rule adoption process was based upon materials developed by the School Board staff on impact costs associated with rezoning in their areas of administrative responsibility. The Economic Impact Statement itself was based ". . . upon the premise that only those incremental, out-of-pocket costs attributable to the policy revision and rezoning process are included." Previously committed, or "sunk," costs such as salaries and related employee benefits were explicitly excluded from the analysis, although such costs were significant since the rezoning process absorbed a great deal of staff time. Similarly, "opportunity" costs, in the form of benefits foregone by directing district resources to rezoning rather than other goals were specifically excluded from consideration in the Economic Impact Statement. These base assumptions were described in the Economic Impact Statement itself. Petitioners, Joseph and Piercie Ehrlich, reside in Leon County, Florida, with their two daughters, Stephanie and Betty, who presently attend Lincoln High School. Under the proposed rezoning plan, the Ehrlichs' daughters would be required to attend Rickards High School, unless they choose the grandfather option in order to remain at Lincoln High School. Lincoln High School is located 1.58 miles from the Ehrlich home, and it is approximately 5 miles to Rickards High School from their residence. In the event that the proposed amendments to the school attendance zones are adopted, both of the Ehrlichs' daughters testified that they will exercise the grandfather option in order to continue to attend Lincoln High School. Petitioners, Robert and Joni McDermott, reside in Leon County, Florida, with their daughter, Dana, who is presently a student at Lincoln High School. The McDermotts' daughter will be required to attend Rickards High School, unless, as she testified, she exercises the grandfather option, should the proposed school attendance zones be adopted. The McDermott residence is located 2 miles from Lincoln High School, and approximately 3.5 to 4 miles from Rickards High School. Curt and Linda McKenzie reside in Leon County, Florida, with their daughter, Kris, who is a student at Lincoln High School. If the proposed rezoning amendments are adopted, Kris will be required to attend Rickards High School, unless she chooses to remain at Lincoln under the grand fathering provision. The McKenzie residence is located 1.6 miles from Lincoln High School, and approximately 4 miles from Rickards. A. P. and Judy Floyd reside in Leon County, Florida, with their child, Tracy, who would be entering the 9th grade at Lincoln High School, absent the proposed amendments to the school attendance zones. However, under the proposed plan, Tracy will be required to attend Rickards High School for the 1981-82 school year. Lincoln High School is located 1.6 miles from the Floyd residence, and Rickards High School is located 4.4 miles from their home. Counsel for both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact have not been adopted in this Order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue Whether just cause exists to terminate Respondent from his employment with the Sarasota County School Board.
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Sarasota County, Florida. At all times pertinent to this case, Respondent was employed by the Sarasota Board as a teacher. Respondent is certified to teach biological sciences grade 6 through 12. Respondent is not certified to teach reproductive health or health opportunities through physical education classes. Respondent was reassigned to the Landings,6/ the School Board’s administrative offices during the course of the investigation. On May 1, 2014, Superintendent White executed a letter to Respondent which provided in part: It has been reported to me by Dr. Rachel Shelley, Principal of Booker High School, that you have been insubordinate by not maintaining a professional learning environment with your students. It is reported that progressive discipline has occurred; however, these interventions have not been successful. You have grieved the initial proposed termination set for March 19, 2014 and on April 29, 2014; you were notified that this grievance was denied. Accordingly, I will recommend to the School board that it terminate your employment effective May 21, 2014. The School Board will vote to accept or reject my recommendation at its May 20, 2014 meeting. The meeting will be held at 1980 Landings Boulevard, Sarasota, Florida at 3:00 p.m. Background: Respondent was hired to teach integrated science to ninth-grade students at Booker High School (Booker) beginning in the 2001-2002 school year. Respondent taught at Booker for three years under Principal Jan Gibbs. At the beginning of the 2004-2005 school year, Respondent became the dean of a newly created middle school called Student Leadership Academy (SLA). Respondent worked at SLA for a year and a half. In the spring of 2006, Respondent transferred to and taught honors biology at Riverview High School. Respondent returned to Booker for the 2006-2007 school year under Principal Jill Dorsett. During the 2008 spring break, Principal Dorsett was reassigned to the Landings, and Constance White-Davis became Booker’s principal. Principal White-Davis served Booker for several years. During the 2008-2009 school year, Assistant Principal (AP) Edwina Oliver served as a teacher evaluator of Respondent. In April 2009, AP Oliver discussed with Respondent certain guidelines and expectations for teaching at Booker. AP Oliver reduced her comments to a memorandum of instruction (memo) to Respondent. This memo was not considered as discipline, but rather a reminder to Respondent of the guidelines and expectations for Booker teachers. The reminders included: responsibilities of assigned students according to Smartweb;7/ effective use of instructional time;8/ and consistent enforcement of policies related to student’s expectations.9/ In March 2010, AP Oliver issued a verbal reprimand to Respondent regarding his involvement in a Facebook exchange with a female student. During the Weingarten hearing,10/ Respondent admitted that R.P. was a student in his classroom, and it probably wasn’t the best idea that he responded to a female student’s Facebook posting by providing his cell phone number. Respondent was evasive in answering questions at the hearing regarding this incident; yet, he asserted that neither he nor R.P. contacted one another after Respondent supplied his cell number. Principal Rachel Shelly’s Tenure: When Ms. Shelley began her tenure as Booker’s principal, she devoted her first year to listening, watching, and meeting with administrators, lead teachers, teachers, parents, and community members. Principal Shelley found Respondent to be jovial, social, highly intelligent (in that he knew his curriculum), and very popular among the students. At some point AP Oliver shared with Principal Shelley her concerns regarding Respondent and his teaching style. AP Oliver was concerned that Respondent showed a lot of videos in his classroom, that he allowed students to come and go at will, and that he lacked high expectations for his students. Principal Shelley maintains high expectations for all Booker students and teachers. In order for Booker students to achieve their highest potential, Principal Shelley needs highly effective teachers who will “set and consistently maintain high expectation[s].” Booker (as all public schools in Florida) is mandated to teach to the Florida Education Accomplished Practice (FEAP) standards. FEAP requires that teachers must know how to do certain things and be able to teach those things to students. In order to meet these high standards, Principal Shelley tries to hire highly effective teachers in order for her students to advance. In April 2013, Respondent was placed on administrative leave while the school district conducted an investigation into an alleged battery of a student. A female student came forward and alleged that while she was alone in a classroom/preparation room grading papers for Respondent, Respondent brushed by her and grabbed her butt. The student reported the incident to Principal Shelley, who immediately instituted the district protocol by removing Respondent from the classroom environment. Respondent was instructed to wait for further instructions from Principal Shelley. Principal Shelley notified law enforcement via the Booker school resource officer, and a criminal investigation was conducted. For the remainder of the 2012-13 school year, Respondent worked at the Landings. Upon completion of the district’s investigation, it was determined that Respondent had violated two school policies: allowing a student to grade other students’ papers; and allowing a student to be alone in a classroom/preparation room. Respondent was suspended from the classroom for five days without pay. He served the suspension between October 16 and October 22, 2013. In late September 2013, the criminal charges against Respondent were dropped, and he was allowed to return to the classroom with specific expectations regarding his classroom teaching and management style. One specific instruction given to Respondent was that he was not to allow unassigned students in his classroom. The evidence clearly demonstrated that Respondent allowed a male student, K.C., who was not assigned to Respondent, to enter Respondent’s classroom during Respondent’s lunch/planning period. K.C. remained in Respondent’s classroom approximately 10-15 minutes. Respondent did not ask K.C. for a hall pass. Principal Shelley gave Respondent a verbal warning regarding his misrepresentation of the facts surrounding K.C.’s classroom visit. In November 2013, Principal Shelley conducted a walk- through of Respondent’s classroom. While there, Principal Shelley noted that Respondent’s lesson plans were not completed or available for viewing, and that students were eating in the classroom. Respondent was advised of these issues. In December 2013, Principal Shelley conducted a Weingarten hearing regarding the number of labs that Respondent was conducting in his classes. Principal Shelley directed Respondent to implement hands-on labs as required by the physical science curriculum, as she found that Respondent was not conducting the requisite number of labs. In January 2014, during Respondent’s marine science class, Respondent showed human pictures of male and female genitalia infected with the human papillomavirus (HPV). Respondent thought it was a “teachable moment” for juniors and seniors in high school. He continued to state something to the effect that if the students weren’t going to abstain from sex, they should use “condom sense.” Respondent admitted it was “a huge lapse in judgment,” “it was not in any way related to marine science” and he was “deeply sorry if [he] offended any student or parent.” Respondent admitted that he engaged in a conversation with students regarding “BJ’s and Costco.”11/ One student, K.S. (also known as K.L.R.S.), credibly testified that Respondent engaged in a conversation with students acknowledging that he (Respondent) liked Hispanic girls. K.S. was also distressed when Respondent winked at her following a comment about Respondent liking curly-haired Hispanics. Additionally, Respondent admitted to making sexually charged statements about his wife and/or his preference for Latin women. Even if those statements were taken out of context, Respondent should not have engaged in these conversations with students. A female student was offended by Respondent’s actions and reported them to a teacher, who in turn encouraged the student to report them to Principal Shelley. Once Principal Shelley heard the allegations, she immediately implemented the district protocol and relieved Respondent of his teaching responsibilities. After the district conducted another investigation, Superintendent White issued the termination letter to Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner terminate Respondent's employment as a classroom teacher for Sarasota County School Board. DONE AND ENTERED this 22nd day of December, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2014.
The Issue The issues are whether Respondent is guilty of incompetency, misconduct in office, or insubordination and, if so, whether Petitioner may suspend her without pay for 13 days.
Findings Of Fact Respondent has been employed by Petitioner for 26 years, but not for the period of 1997-2007. For the most part, Respondent has served as a classroom reading teacher, but she has also served as a district-level behavior specialist over ten years ago. Starting in the 2006-07 school year and through the 2011-12 school year, Respondent has been assigned as a tenth grade reading teacher at Blanche Ely High School. Respondent has never received any discipline on her educator's certificate. Until the 2011-12 school year, Respondent had never received any adverse employment action from Petitioner. All of her evaluations during her tenure at Blanche Ely bore satisfactory marks. For the first two years after Respondent returned to teaching in Petitioner's schools, she was on annual contract, but she regained a professional service contract starting the 2008-09 school year. Ms. Baugh's first year as assistant principal at Blanche Ely was the 2011-12 school year. Ms. Baugh previously served as assistant principal at Deerfield Beach High School and, before that, served for seven years as a classroom reading and English teacher. Among Ms. Baugh's responsibilities at Blanche Ely during the 2011-12 school year was to supervise the reading and English departments. Ms. Baugh was thus Respondent's direct administrator. Ms. Baugh's first observation of Respondent's class took place on September 28, 2011. Ms. Baugh remained in the classroom for 30 minutes. Ms. Baugh observed deficiencies in three areas. First, as to instructional planning, Respondent had failed to write the learning objectives on the board, so the students lacked a clear understanding of what they were supposed to learn from the lesson. By failing to introduce the students to the material properly, Respondent allowed students to become confused as to their tasks in reading an interview in a textbook. Lastly, Respondent broke the class into pairs to write an interview, without first providing an example of how to write an interview or giving the students a chance to practice the task, and some students did not understand their respective roles in the small groups. Second, as to lesson presentation, only a few students engaged in an assigned activity because Respondent had failed to provide pre-reading assignments or to explain the purpose of the reading assignment. In reviewing an activity in which students were to determine their areas of weakness, Respondent asked three students to share their three most common mistakes, but failed to determine whether the students actually knew their areas of weakness. Lastly, Respondent failed to write on the board the vocabulary, learning objectives, and specific tasks for the lesson. Third, as to subject-matter knowledge, Respondent consistently misidentified the FCAT 2.0 Reading Category Four as "Informational Text and Technology." It is "Information Text/Research Process." Respondent did not resist Ms. Baugh's comments during the post-observation conference, which took place on October 3, 2011, although Respondent incorrectly insisted that the FCAT section to which she had referred would cover technology. During the conference, Ms. Baugh informed Respondent that she would receive assistance in instructional planning, lesson presentation, and subject-matter knowledge. Ms. Baugh warned Respondent that she would be placed on a Performance Development Plan, if she failed to remediate these deficiencies. One day within two weeks of the October 3 conference, Respondent was instructing her class when a student asked a completely off-topic question about sex. Unable to regain control of the class, Respondent floundered, and other students seized the opportunity to ask inappropriate questions. In the ensuing verbal melee, answering questions posed to her, Respondent told the students that she first had had sex in college and it had been physically painful. As surprising as Respondent's lapse in judgment in answering these questions about her personal sex life, her explanations for why she did so were even more surprising. When asked during cross-examination why she would answer such obviously impertinent questions, Respondent twice, sitting silently, responded by snapping her fingers repeatedly. As though she were overwhelmed by the attorney's question, Respondent resorted to this gesture to indicate that the rapid- fire questions themselves had overwhelmed her. When finally coaxed to substitute language for gesture, Respondent lamely explained that a teacher cannot ever be viewed as inappropriate when she is honest with a child. After a conference on October 22, during which Respondent denied having made any sexual comments in class, Ms. Baugh informed Respondent, somewhat cryptically, "to no longer engage in nonacademic discourse and off-topic discussion by desisting students' negative behaviors." Doubtlessly, though, Respondent understood that she was not to do this again. Ms. Baugh's second observation of Respondent's class took place on November 9, 2011. As Ms. Baugh entered the class, the students were loudly demanding to know what they were supposed to be doing in class. In response to one student, Respondent replied that they should write the words on the overhead projector. The lesson was devoted to acquiring vocabulary through morphemes. While students were working on the lesson, a loud dialog took place between a student sitting near Ms. Baugh and another student sitting across the classroom. Their comments included profanity and disparaging remarks, including one statement referring to the boy on the other side of the classroom as "fat boy." Other students were leaving the classroom, some with and some without passes. Still other students were laughing and talking. Few students were doing the assigned work, but Respondent never intervened. When later asked why she had not intervened, Respondent told Ms. Baugh she did not want the behaviors to worsen and the situation to escalate. After working on the morphemes assignment, the students turned their divided attention to another assignment. Respondent neither explained the purpose of the new activity, nor did she introduce the new activity to the students. Instead, Respondent told the students merely to turn to a certain page and begin to work. Ms. Baugh observed deficiencies in instructional planning, lesson presentation, and behavior management. As to the last, Ms. Baugh told Respondent to stop negative behaviors and impose consequences for misbehavior. By this time, Respondent was receiving assistance from Ms. Powell, another reading teacher, and a retired principal. Later, Ms. Baugh assigned a second reading coach to try to help Respondent. Ms. Powell actually had started helping Respondent in 2009, at least in group sessions given for the benefit of all of the reading teachers. Clearly, though, by the 2011-12 school year, Ms. Powell was providing much more in-depth, individual assistance to Respondent. For instance, following an observation on October 28, Ms. Powell provided Respondent with a detailed Teacher Support Narrative. As to one observation, Ms. Powell noted how Respondent's board was cluttered, bore incorrect lesson objectives, and reflected the use of obsolete student-grouping criteria. Ms. Powell told Respondent to visit the classrooms of three other teachers to see how a board should be organized. But, by their next meeting, Respondent had not done so. Increasingly, though, Respondent was losing control of her classroom. Nearby teachers would enter Respondent's classroom to try to help restore order. Respondent later explained that she did not summon security because she had done so on a couple of occasions early in the school year, but security had never responded. On at least two or three occasions, when a student swore openly in class, Respondent's "strategy" was to repeat the word, in asking what he had said, such as "did you say 'fuck?' or "did you say 'bitch?'" Predictably, the effect of the teacher's repeating the swear word did not de-escalate the situation. On December 12, 2011, one student repeatedly directed a profanity toward Respondent in class and then seized Respondent's personal computer to access a grade program to change his grade. When the other students became disruptive too, another teacher had to enter the classroom to restore order. Because Respondent had not contacted security, the other teacher did so. Eventually, Respondent issued a referral only for the profanity, not the seizing of the computer, although this act compromised confidential information of other students. By letter dated January 17, 2012, Ms. Baugh issued Respondent a written reprimand for failing to manage the behavior of her students and allowing an unsafe learning environment to ensue. Ms. Powell witnessed the aftermath of a more serious incident that took place on December 15 in Respondent's classroom. At the start of class, a boy struck a girl in the head with a bottle. Although Respondent wrote a referral on the boy, she allowed both students to remain in the class for the duration of the period. As Ms. Powell entered the classroom, the period had evidently just ended, and the boy had just left the classroom, but she saw the girl, crying, on her cellphone talking to someone. She was asking the person with whom she had called to come to school to pick her up because a boy was bothering her, and her teacher was not doing anything about it. Instead of comforting the child, Respondent was busily walking around the classroom picking up papers. In response to questions from Ms. Powell, Respondent confirmed what had happened. When Ms. Powell asked if Respondent had called security, she said she had not because she was straightening up the room. Respondent then told the girl to proceed to her next class, but Ms. Powell told her not to leave the safety of the classroom until they knew the location of the boy. The girl left the classroom anyway, and Ms. Powell trailed her to make sure that the boy did not approach her. Just at that moment, the security guard arrived, so Ms. Powell could return to the classroom and admonish Respondent for, among other things, cleaning up the room before addressing the needs of the student who had been struck by the bottle. Later, in a conference, Respondent told Ms. Baugh that she had not called security because the fight had taken place just outside her classroom. Respondent added that she also knew that the boy did not bother girls, only other boys. Unmoved by Respondent's so-called explanations, by letter also dated January 17, 2012, Ms. Baugh issued a written reprimand for Respondent's failure to make a reasonable effort to protect a student from conditions harmful to her health or safety. Ms. Baugh's third observation of Respondent's class took place on January 5. The observation generally noted the same deficiencies as had been noted in the preceding two observations. This time, students laid their heads on their tables, and Respondent did not make them pay attention. The classroom was noisy, as students laughed and talked without being redirected. Two students even had headphones over their ears. When later asked about these matters, Respondent told Ms. Baugh that she did not address these behaviors because she did not want to delay instructional momentum. As was the case with the second observation, Ms. Baugh noted deficiencies in instructional planning, lesson presentation, and behavior management. In February 2012, Respondent experienced serious problems in assigning correct grades and less serious problems in proctoring exams and handling secure exam materials. Eventually, Respondent managed to combine her deficiencies in teaching and classroom management by improperly assigning low academic grades based on misbehavior. By letter dated March 21, 2012, which was later superseded by a letter dated March 22, 2012, Ms. Baugh advised Respondent that she was recommending a three-day suspension for the above-discussed performance deficiencies, which covered a period starting with the beginning of the school year and ending on the date of a predisciplinary meeting that had taken place on March 2. This is the proposed action that is the subject of DOAH Case No. 12-1924TTS. Two more classroom-trashings occurred in the two days following the March 21 three-day suspension letter. First, on March 22, Ms. Powell found Respondent trying to use an overhead in a fully lighted room. Because the image was washed out, Ms. Powell suggested that they turn out the lights, but provide some light by opening the blinds shading the top of the windows. Ms. Powell and Respondent adjusted the lighting accordingly. Ms. Powell left the classroom to help another teacher. Returning to Respondent's classroom 30 minutes later, Ms. Powell could hear a loud commotion as she approached the classroom in the hall. She heard falling desks and chairs and loud shouting. As Ms. Powell entered the classroom, it was pitch black. Ms. Powell turned on the lights and saw that the students had trashed the classroom, again flipping desks and chairs and strewing the floor with papers and books. Ms. Powell asked what was going on, and Respondent explained, with no sense of urgency, that the students kept turning off the lights. When Ms. Powell asked Respondent to identify the misbehaving students, Respondent mentioned the name of one student. The student declared that he was innocent, but Respondent said, "oh, yes, it was you." When Ms. Powell began to call this student's parents, Respondent interrupted and said she was not sure that he was the perpetrator. Second, on the afternoon of Friday, March 23, Ms. Powell noticed students running from the computer lab toward the vending machine area. Ms. Powell approached Respondent, who had just escorted her class (or most of it) from the computer lab back to her regular classroom. Respondent denied that there had been any trouble. Unconvinced, Ms. Powell walked over to the computer lab and found overturned desks, flipped chairs, the phone off the hook and on the floor, and papers and books strewn along the floor. Respondent entered the room and denied that her students had done this trashing of the lab. This denial, which Respondent repeated at hearing, is specifically not credited. Additionally, after receiving the March 21 three-day suspension letter, Respondent continued to grade student work arbitrarily. On one occasion, also on March 22, Ms. Powell noticed that two students with the identical answers had received very different grades for their homework--one getting a 100% and one getting a 50%. When Ms. Powell asked Respondent about the discrepant grading, Respondent replied that she had concluded that the student with the 50% had cheated. Respondent reasoned that the first student to have handed in her assignment had obviously done her own work, but the other student must have copied. When Ms. Powell pointed out the fallacy of this thinking and asked if Respondent had bothered to speak to either of the students, Respondent admitted that she had not. On another occasion, within the same week, Respondent reduced a student's grade on an assignment because of classroom misbehavior--again, improperly using an academic assessment to deal with misbehavior. The student demanded to know whether Respondent had reduced her grade because she is black. Resorting to her earlier strategy of repeating profanity, Respondent sarcastically repeated the question by saying that she had reduced her grade because she was black. Outraged, the student then became loud and aggressive with Respondent. This statement of Respondent, who is white, was insensitive, at the least. As noted by the reference in Petitioner Exhibit 44, this statement came shortly after the racially charged killing of Trayvon Martin. This exhibit states that Respondent tried to justify her reducing the student's grade because the student had taken a piece of yellow paper from Respondent's desk, without permission, and had written on it: "RIP Trayvon Martin." This is a good example of Respondent's missing a crucial teachable moment, instead insensibly clinging to her "technique" of repeating the student's utterance--for what purpose is never clear. The evidentiary record reveals some evidence of insubordination, considerable evidence of incompetency, and overwhelming evidence of misconduct in office. In some cases allowing and in other cases creating conditions in her classroom the precluded learning and endangered the safety of the students entrusted to her, Respondent's deficiencies in classroom management--exacerbated by her incompetency in the form of inefficiency and incapacity--are so serious as to impair her effectiveness in the school system. Considering the acts and omissions covered by the two written reprimands solely for the purpose of applying the progressive discipline policy of Petitioner, the evidentiary record amply supports a 13-day suspension, without pay, for the misconduct in office and incompetence proved in these cases.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order suspending Respondent, without pay, for 13 days. DONE AND ENTERED this 12th day of February, 2013, 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 12th day of February, 2013. COPIES FURNISHED: Melissa C. Mihok, Esquire Kelly and McKee, P.A. 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Eugene K. Pettis, Esquire Brian Engel, Esquire Haliczer, Pettis, and Schwamm, P. A. One Financial Plaza, 7th Floor 100 Southeast 3rd Avenue Fort Lauderdale, Florida 33394 Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Dr. Tony Bennett Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Carter holds Florida teaching certificate number 383679, graduate, rank III, valid through June 30, 1978, covering the area of music education, and at all times pertinent hereto was employed in the public schools of Duval County, Florida, at Matthew Gilbert Seventh Grade Center as a Band teacher. During the summer school session of 1978, at Matthew Gilbert, Carter was assigned as teacher for the Band class to be held during that session. The class was funded through the Full-Time Equivalent (FTE) program. In order to maintain the allocation of FTE funds, there was a requirement that a minimum number of 15 band students be enrolled and in attendance. In previous summers, band was an enrichment program which received no FTE money and did not require attendance records. However, during summer school of 1978, these requirements were changed and it was necessary to maintain a register of attendance of the Band class for FTE auditing purposes. In the event the required enrollment was not met, then the class could not be held. If that occurred, the teacher would receive no salary for the summer session relating to that course. Carter prepared a student attendance register for the summer school of 1978 band class beginning June 16, 1978, and ending July 28, 1978. That register reflects 18 enrolled students in the course. Carter also prepared two summer school class enrollment sheets for FTE reporting purposes. The first is dated June 30, 1978, and shows 19 students enrolled in Band. The second is dated July 10, through July 14, 1978, and reflects 18 full-time students and 1 half-time student enrolled in Band. Notwithstanding these enrollment sheets, actual student enrollment and attendance was far below that which was reported by Carter. Deidre Sampson was reported as having been present for thirty (30) days between June 16, 1978, and July 28, 1978. Ms. Sampson also received a grade of "C" in the course. While Ms. Sampson was enrolled in the course, she attended no more than two or three days. Deborah Grant Lewis enrolled for the course and attended it for a period of three weeks and then lost interest and withdrew from the course. She received a "B" for the course and the attendance register reflects that she was present for twenty-nine (29) days with one day absent. Lloyd Gillespie neither enrolled in the course nor ever attended the course, yet he received a grade of "C". The attendance register reflects that Lloyd Gillespie was present for twenty-nine (29) days with one day absent. Ricky King enrolled in the course and attended for two or three weeks and then dropped out. The attendance register reflects that he was present twenty-seven (27) days with three days absent. LeVonne Sinclair enrolled in the class and attended through July 3, 1978, at which time she dropped out because of other employment responsibilities. While Ms. Sinclair did not receive a grade, her attendance register reflects twenty-seven (27) days in attendance with three days absent. Patricia Willis enrolled in the band course but never attended any classes. Nonetheless, Ms. Willis received a grade of "C" in the course and the attendance register reflects she attended twenty-six (26) out of the thirty days. Laura Redden enrolled in the Band course but never attended. She did not receive a grade but the attendance register reflects thirty days attendance with no absences. Vanessa McBride never enrolled in or attended the Band class but shows on the attendance register as having attended twenty-seven days with three days absent and receiving a grade of "C". It was the responsibility of Carter to prepare the student attendance registers and grade reporting forms for his class. The evidence establishes that Carter's signature appears on those forms which reflect the inaccurate attendance data and the award of undeserved grades. Mr. James E. Thompson, who is principal of Matthew school where Carter teaches, is willing to accept Carter in the future as one of his teachers because of Carter's overall abilities. Carter's efficiency ratings reflect that he is, otherwise, an effective teacher. The evidence establishes that Carter signed his name to official reports that were patently incorrect. If the reports had been submitted correctly then FTE funds would have been terminated for the Band class, the class would have been cancelled and Carter would not have received remuneration for services as a Band instructor during that summer session of school. The evidence does not establish Carter's motivation as being that of protecting his income or insuring that the course was made available to those students who did attend.
The Issue The issue is whether Respondent's teaching certificate should be disciplined.
Findings Of Fact At all times material here Respondent was, and continues to be, an employee of the Hernando County School Board (HCSB) as a member of the instructional staff. Respondent is employed under a "professional service contract." The origin of these proceedings occurred on December 5, 1996, when Respondent was arrested for allegedly engaging in inappropriate sexual conduct with a male, minor student. Apart from the allegations raised in this case, Respondent has been a satisfactory and effective employee of HCSB. Respondent began working for HCSB in 1989 at Powell Middle School as a science teacher with regular classroom duties. He eventually became the technology resource coordinator at Powell Middle School. As such, he no longer had regular classroom duties. Throughout his teaching career, Respondent frequently tutored and mentored students who needed help. Even without regular classroom duties Respondent continued to help students. Such help continues today. In fact, Respondent is known and respected by peers and parents for the mentoring and tutoring he gives to students and the success he has had with troubled students. Beginning in January 1995, Respondent served as director of an after-school program at Powell Middle School. HCSB and the local YMCA sponsored and funded the after-school program until sometime in the Spring of 1996 when the program was discontinued. Respondent was in large part responsible for the successful creation, organization, and operation of the after-school program. The after-school program began immediately after each school day and continued until 5:00 p.m. The program was staffed by Powell Middle School staff and other adults who taught different classes. Some of the after-school activities, like swimming lessons, took place on the premises of the YMCA. The after-school program participants enrolled in the off-campus activities rode a school bus from the school to the various activities in remote locations. Respondent directed the after-school program initially from his classroom in the science building of Powell Middle School and, subsequently, from a room used as a computer lab, adjacent to his former classroom. A number of school administrators and teachers were constantly walking in and out of the areas where Respondent worked each day because supplies for the after-school program were stored in the computer lab storage rooms. After school, teachers frequently visited Respondent's work station unannounced. Janitors and work details were on the school premises until 11:00 p.m. Bathrooms and a refrigerator for staff were located near Respondent's work station. Respondent's classroom in the science building had large windows along the outside wall. There were windows between the computer room and Respondent's classroom. There were windows between the computer room and another classroom in the same building. The only area which had any possibility of privacy was a walk-in storage closet in the computer room. The doors to the science classrooms, the computer room, and closet were never locked. During the summers, Respondent spent his time working at Camp Sangamon, a camp in Vermont for boys of all ages. He began working at the camp in 1980 as a regular counselor. Later he served as head of the activity trip program. Respondent worked as the camp's assistant director for about eight years. In the Summer of 1995, Respondent lived in a cabin with older boys who were counselors-in-training (CITs). However, he spent almost all of his time in the administrative office taking care of paperwork, planning activities, and supervising programs. He never went to his cabin in the middle of the day unless he was specifically looking for a CIT. Respondent's cabin was on a main trail through the camp in close proximity to other cabins and a basketball court. People were constantly walking by the cabin, especially in the middle of the day during a free activity period. The cabin did not have a lock on its door. It had large windows with no screens, which were usually propped open with a stick. The panels that formed the walls of the cabin were separated by approximately one inch. The spaces between the panels left the interior of the cabin visible during the day. As assistant director, Respondent could arrange for Florida boys to attend the camp at a reduced rate. Over the years, he made these arrangements for several boys. Respondent met C.B., a seventh grade student at Powell Middle School, in 1995. C.B. was a very troubled young man. He regularly skipped school, lied, and ran away from home. His home life included physical and mental abuse. His relationship with his parents was poor. His grades were very poor and he was on a track for dropping out of school. In 1995, C.B. was not one of Respondent's regular students. He was a participant in the after-school program. Initially, C.B.'s stepmother called Respondent to check on C.B.'s attendance in the after-school program. The stepmother and Respondent discussed C.B.'s problems, including his attempts to run away from home. During subsequent conversations, Respondent offered C.B. a scholarship to attend Camp Sangamon for three weeks in the summer of 1995. C.B.'s family was pleased that he would have an opportunity to go to camp. They accepted Respondent's offer and made final arrangements for C.B. to attend camp for three weeks at a reduced rate. When C.B. arrived at camp in 1995, he announced that he was going to stay at camp all summer. Despite his initial positive attitude, C.B. had trouble adjusting to camp life. He had problems interacting with other campers. He sometimes would curl up into a fetal position and cry uncontrollably. Respondent often helped C.B. get through these episodes. With help from his counselors and encouragement from Respondent, C.B. stayed at camp for eight weeks. Gradually, Respondent learned of C.B.’s troubled home life and felt sympathy for him and wanted to help. During the summer of 1995, Respondent assisted C.B. with the completion of a science project. C.B. had to complete the project in order to be promoted to the eighth grade. Respondent's cabin was always open with CITs coming and going. There was no reasonable expectation of privacy in the cabin at any time. C.B.'s testimony that, at Respondent's request, he masturbated Respondent's penis in the cabin during a free activity period just before lunch is not credited since C.B.’s multitude of statements regarding multiple alleged incidents of sexual activity between Respondent and himself were highly inconsistent and consisted of changeable details which showed the implausibility, if not impossibility, of such activity occurring. In fact, all of C.B.’s allegations suffer from this infirmity. After returning from summer camp, C.B. went boating with Respondent and several other people. The group enjoyed snorkeling and water skiing. However, C.B. and Respondent were never alone on a boat. C.B. was in the eighth grade at Powell Middle School in the Fall of 1995. Even though he was not in one of Respondent's classes, C.B. often received passes from his teachers to visit Respondent's classroom during the regular school day. C.B. participated in the after-school program activities both on- and off-campus. There was some indication that C.B. was not permitted to go home after school unless someone was present at the home. Respondent regularly drove C.B. home following the close of the after-school program. Respondent worked one-on-one with C.B. to improve his grades. Respondent also worked one-on-one with other students during the same time period. He set up a program for C.B. that required C.B. to obtain the signatures of his teachers on an attendance and work form. Two to three times a week, Respondent visited C.B.'s home to tutor C.B. C.B. also was tutored by Jen O’Connor during the after-school program. C.B.'s grades improved markedly and he made the honor roll during the first grading period of his 8th grade year. Respondent encouraged C.B. to set high school graduation as a goal which would cause C.B. to be the first in his family to remain in school and graduate. C.B. testified that during the after-school hours of the 1995-96 school year, he twice complied with Respondent's request to masturbate Respondent's penis on school grounds, either in the science classroom or the adjoining computer/storage room. This testimony is contrary to the greater weight of the evidence and again lacks credibility. On October 20, 1995, Respondent took C.B. to Disney World as a reward for his academic success during the first grading period. The Disney trip was an incentive for good progress which had been agreed to earlier that year by C.B.’s parents. Respondent and C.B. traveled in Respondent's pickup truck and shared the expenses of the trip. C.B. left with enough money to buy a one-day pass to one of the three Disney parks. Respondent and C.B. arrived at the Disney World parking lot before the amusement park opened. They parked in front of the ticket booth around 9:00 or 9:30 a.m. Other cars were also arriving. Parking attendants and people waiting to enter the entertainment area were in close proximity to Respondent's vehicle at all times. Disney was running a special promotion for Florida residents. For a small increase in the price, a Florida resident could purchase a pass to all three Disney parks for a year. Respondent wished to go to all three parks but could not do so unless C.B. was able to take advantage of the Disney promotion. Respondent and C.B. paid their entrance fee for all three parks with Respondent providing the difference in price. They entered one of the theme parks as soon as it opened for business. The evidence did not show that there was anything inappropriate about the ticket upgrade or Respondent making up the difference in price. The purchase of the pass was in no way harmful to C.B. With so many people around, there was no privacy or expectation of such in Respondent's truck. C.B.'s testimony that he masturbated Respondent's penis in the Disney World parking lot is not credited. During the 1995-96 school year, Respondent arranged for C.B. to attend a counseling session with a guidance counselor at Powell Middle School. Respondent made the appointment because he suspected that C.B. was the victim of abuse at home. On February 5, 1996, C.B. and his father had an argument. The father lost his temper and punched C.B. in the face and ear. C.B. did not go to school the next day. The school resource officer noticed bruises on C.B.'s face the following week at school. He reported his observations to an investigator from the Department of Children and Family Services. C.B.'s father admitted to the investigator that he hit C.B. in the face. The authorities took no legal action against C.B.'s father. At the end of his eighth grade year, C.B. was promoted to ninth grade and would be attending Springstead West High School. At the time, both C.B. and his parents expressed great appreciation over the help Respondent had given to C.B. That summer C.B., with the permission of his parents, again attended camp at a reduced rate. He went to Vermont early so that he could earn money working at camp before it opened. During his stay at the camp, Respondent "fronted" C.B. the money to buy a portable CD player, CDs, and some articles of clothing with the understanding that C.B. would repay Respondent later from the funds C.B. had in his camp account. In fact, C.B. did repay Respondent for these items. Additionally, Respondent permitted C.B. to use his credit card to order and purchase items from a catalog over the telephone. Again C.B. paid Respondent back. There was no evidence that these purchases were improper or harmed C.B. Mrs. Peady O'Connor, one of Respondent's friends, also went to camp in the summer of 1996 to work in the kitchen. C.B. stayed at camp all summer, returning home with Respondent and Mrs. O'Connor on August 16, 1996. There was no evidence the scholarships to camp Respondent provided during any of the summers at question here were improper. If anything, the scholarships benefited C.B. and the other boys who received them. Immediately upon his return to Florida, Respondent began having trouble with his truck. He took it to the shop on Saturday, August 17, 1996. He spent the rest of the day with a friend, Jackie Agard. Respondent did not go boating that weekend. School started on August 19, 1996, for the 1996-97 school year. Respondent returned to work at Powell Middle School as the technology resource coordinator. C.B. attended ninth grade at Springstead West High School. C.B. would occasionally contact Respondent for help. On Tuesday, August 20, 1996, Respondent leased a new sport utility vehicle. It did not have a pre-installed trailer hitch necessary for towing Respondent’s boat. The next Saturday, August 24, 1996, Respondent spent the day with friends from out-of-town. He did not go boating that weekend. On August 29, 1996, Respondent purchased a trailer hitch. He intended to install the hitch personally. That same day, Respondent and Chuck Wall, a scuba diving instructor, met with C.B. and his parents. The purpose of the visit was to sign C.B. up for scuba diving lessons. Respondent agreed to pay for the lessons as he had for those of other young people. Again, no evidence demonstrated that such lessons or the payment for scuba lessons were inappropriate or in any way harmful to C.B. On Saturday, August 31, 1996, Respondent took some of his friends to dinner and a movie in his new vehicle. He did not go boating that weekend. Respondent's boat was parked at the home of his parents all summer while Respondent was in Vermont. It was still there when Respondent installed the trailer hitch on his new vehicle on Labor Day, September 2, 1996. On September 3, 1996, Respondent took C.B. to his first scuba diving lesson. After the lesson, Respondent, C.B., and Mr. Wall took Respondent's boat to a marina at Crystal River. After launching Respondent's boat, Chuck Wall had difficulty getting the boat to run because it had not been used for such a long time. Respondent left his boat at the marina for the rest of the fall boating season. The greater weight of the evidence indicates that C.B. and Respondent never went boating alone. There was no inappropriate sexual conduct between C.B. and Respondent on Respondent's boat. On Saturday, September 7, 1996, Respondent took a group of students to Disney World. The trip was a reward for the students' involvement with a video yearbook project sponsored by Respondent. C.B. did not participate in the activity. The next Saturday, C.B.'s scuba diving lesson was cancelled. C.B. did not go boating with Respondent or have a scuba lesson that weekend because he was on restrictions at home. Respondent was invited to and attended C.B.’s stepmother’s birthday party on September 17, 1996. On or about September 18, 1996, C.B.'s parents became aware that C.B. was responsible for long distance phone calls to a girl that C.B. met at camp. The calls totaled about $300.00. Initially, C.B. had hidden the bill from his parents. C.B.’s stepmother discovered the bill. After a confrontation with his parents over the telephone bill, C.B. ran away from home. For the next few days, C.B. was living with friends. There was no evidence that Respondent knew where C.B. was staying or that once he discovered his whereabouts that Respondent withheld that information from anyone. Respondent was eventually asked to help locate C.B. On September 21, 1996, Respondent went to C.B.'s home. C.B.’s father asked Respondent what he thought should happen with C.B. regarding living at home. Respondent suggested that C.B.'s parents let C.B. live with the O'Connor family for a short period of time. He also suggested that C.B. receive counseling and agreed to arrange for the therapy. Mr. and Mrs. O'Connor and their son and daughter were close friends of Respondent. They are good, decent people. The son, Sean O'Connor, was away at college. The daughter, Jennifer or Jen, still lived at home. C.B.'s parents agreed to let C.B. live with the O’Connors on a trial basis provided that C.B. remain on restrictions within the O'Connor home for a period of time and pay back the telephone charges he had incurred. The O'Connors did not live within the Springstead West High School District. C.B. did not want to talk to his parents. Therefore, Respondent and the O'Connors worked together to provide C.B. with transportation to and from school. Further the parents did not provide C.B. any money for lunch while he was at the O’Connors. Again it was up to both Respondent and the O’Connors to provide C.B. with lunch money. C.B.’s parents were aware of the need for transportation and lunch money but did not offer to provide or provide any of these needs while C.B. was at the O’Connors. In fact, C.B.’s parents did not attempt to visit C.B., communicate with C.B., or be otherwise interested in C.B.'s well-being during his month long stay at the O’Connors. Respondent also purchased C.B. a beeper to facilitate communication between C.B. and Mrs. O'Connor. All of these provisions were reasonable for C.B. There was no evidence which showed these items were improper gifts on the part of Respondent or could reasonably be anticipated to cause harm to C.B. On the contrary, these "gifts" were beneficial, if not necessary, to C.B. After moving in with the O'Connors, C.B. was allowed to attend a football game. He did not meet Mrs. O'Connor after the game as he had been instructed. The police found C.B. and turned him over to C.B.'s stepmother. As soon as he got to the gate of his parent's property, C.B. got out of his stepmother's car and ran away again. The police eventually found C.B. at the home of his stepbrother's girlfriend on October 2, 1996. C.B.'s parents told the police to release C.B. to Respondent's custody. Respondent took C.B. back to live with the O'Connors. October 7, 1996, was an early release day at school. Respondent, C.B., and another student left from school to look for a lost anchor. Later that evening, Respondent dropped off C.B. at the O'Connors' residence then proceeded to take the other student home. October 8, 1996, was a hurricane day for the school district. Mrs. O'Connor was at home all day. Respondent and C.B. were never alone in the O'Connors' home. There is no persuasive evidence that Respondent ever performed anal intercourse upon C.B. at the O'Connors' home or at Powell Middle School in the storage closet of the computer room. During the time that C.B. lived with the O'Connors, Respondent arranged for C.B. to attend two counseling sessions with a school psychologist. On October 23, 1996, there was an ESE staffing meeting at Springstead West High School regarding C.B. The meeting was related to C.B.'s special education program. At some point prior to the meeting, the assistant principal was asked to investigate the fact that C.B. was living at the O'Connors and attending a school outside the zone in which the O'Connors lived. Normally, the principal would not be at a staffing meeting. He did not participate in any decision regarding C.B.'s education. Both Respondent and Mrs. O'Connor were invited to attend the meeting by C.B.'s stepmother. All three people attended the meeting along with appropriate education staff. The meeting grew heated over the issue of out-of- district attendance with Respondent becoming exacerbated with the principal and calling him a "liar" and addressing the principal forcefully while getting up out of his chair. The principal became verbally forceful with Respondent. Eventually, both calmed down. Forcefully stating a position is not coercion and the evidence did not show that either Respondent’s or the principal's behavior was either coercive or oppressive, especially since the principal later was instructed by the Superintendent to apologize to Respondent for his behavior during the meeting. During the meeting, C.B.'s stepmother decided it was time for C.B. to return home. She was prepared to take C.B. home that night after the meeting. She asked Respondent to leave her son alone. However, apparently her words were spoken out of exasperation since C.B., who was at the school, left with Respondent and Mrs. O’Connor at the conclusion of the meeting with C.B.'s mother's consent. C.B. had an appointment with a therapist that evening. C.B.'s father would pick C.B. up at the O'Connors the following day. On Thursday, October 24, 1996, C.B.'s father went to the O'Connors to pick up C.B. and move him back home. When the father arrived at the O'Connors' home, C.B. attempted to have a heart-to-heart talk with his father. C.B. wanted to know why his father always sided with his stepmother against him. He also told his father that he did not want to return home. His father told C.B. that he was coming home and that he could either come home the easy way or the hard way. When the father insisted that C.B. return home, C.B. went down the hall and ran out into the backyard of the O'Connors' home. C.B.'s father went out the front door and around the corner of the O'Connors' house. C.B.'s father caught up with C.B., grabbed him from behind, pulled him to the ground, straddled him and, while holding C.B. on the ground with a knee in C.B.'s pelvic area, repeatedly punched C.B. in the face with a closed fist and an overhead strike. C.B.'s father picked his son up by the collar and drug him over to a metal fence. C.B. was trying to push his father’s hands away. His father grabbed C.B. by the neck and slammed his head into the metal fence approximately three times. He struck C.B. about three more times in the face with a closed fist. At that point, a witness to the struggle grabbed C.B.'s father from behind in a half nelson and pulled him off of C.B. Once the father had released his grip and stepped back, the witness let go of C.B.'s father. During the first part of the struggle, C.B.'s father was calling his son a "fucking asshole" and "dirty little bastard." C.B. was yelling that he wanted to kill himself, wanted to get this over with, and hated himself. The father's response was that he could help his son end his life, that he had a gun back at the house, and "you know, we can get this on right now, let's kill you, let's get it over with." Almost immediately after being pulled off, C.B.'s father attacked his son again, grabbed him by the collar and struck him several more times in the face with a closed fist and slammed his head into the ground several times. The witness grabbed C.B.'s father again and tried to pull him off. C.B.'s father did not want to disengage and resisted the witnesses' efforts. The witnesses forced C.B.'s arms off his son and held him. At some point during the struggle, Mrs. O'Connor had come into the backyard. C.B. grabbed Mrs. O'Connor around the ankles and would not let go. C.B. was crying saying he wanted to die and "stop it, stop it, please." Mrs. O'Connor was yelling at C.B.'s father to stop. C.B.'s father still had C.B. by the belt loop and the neck. He had one knee in C.B.'s back. He was grinding C.B.'s head into the ground. The witnesses was forcing C.B.'s father's arms off C.B. Mrs. O'Connor told her daughter, Jen, to call the police. At that point, C.B.'s father let go of C.B. and ceased his attack. All of the blows which the father hit his son with were full force punches. C.B. was bloodied and bruised by his father. Photographs taken show extensive bruising on C.B.'s face. Incredibly both C.B. and his stepmother deny the physical effects of the struggle that night. C.B.'s father was arrested and taken to jail. The next day, C.B.'s stepmother filed a police report alleging that Respondent had sexually abused C.B. After his father was arrested, C.B. spent one night with his stepbrother. His stepmother told him not to attend school the next day. She wanted C.B. to go with her to talk to the authorities and to get C.B.'s father out of jail. Despite these instructions, C.B. rode to school with Jen O'Connor. When C.B.'s stepmother discovered that he was at school, she went to pick him up. When she arrived at school, C.B. refused to go home with or meet with her alone. Because he would not meet with his stepmother alone, he met with her in the presence of the school resource officer. Because C.B. refused to go home, C.B. was taken to a youth shelter in Pasco County, known as the Run-Away Prevention (RAP) house. C.B. ran away from the shelter that night at about 1:00 or 2:00 a.m. C.B. turned to the only adults he knew who could safely contact for help. C.B. called the O'Connors from a pay phone at a mini market in Pasco County. Respondent was at the O'Connors at the time. Both Respondent and Mrs. O'Connor went to pick up C.B. Respondent drove because Mrs. O'Connor did not drive. They picked C.B. up at the mini market in Pasco County. Both discussed with C.B. where he could go. Because of the incident with C.B.'s father, C.B. could not return to the O'Connors' house. Respondent suggested that he return home. However, C.B. rejected that suggestion, saying he would immediately run away again. Additionally, Respondent and Mrs. O'Connor very reasonably believed it would not be physically safe for C.B. to return home. All decided that C.B. would go to the home of another teacher. When they arrived at the teacher's home, some discussion occurred about C.B.'s predicament. There was some discussion about emancipation, but the discussion was purely theoretical. C.B. was given the number for the Domestic Violence Hotline so that he could call and report his father and perhaps obtain some protective services from the state. Neither the teacher nor her roommate, who was also a teacher, reported C.B. to the police or advised his parents of his whereabouts. They did not so report because they reasonably feared for his safety. This was the last time that Respondent had any material contact with C.B. The next day C.B. left the teacher's house and stayed with a friend that he generally stayed with when he ran away. The friend was known to his parents and the friend' house was within a mile of C.B.'s home. Interestingly, C.B. continued to sporadically attend school while on runaway status until he was prevented from riding the bus to school by a bus driver. During the time C.B. was on runaway status, no one asked Respondent if he knew where C.B. was or if he could guess where he might be. Moreover, under these facts, Respondent did not have the duty to report any such information about C.B. On October 29, 1996, and November 6, 1996, a deputy sheriff interviewed C.B. about the allegations raised by his stepmother. On both occasions, C.B. denied that Respondent had ever engaged in or attempted to engage in inappropriate conduct with him. On November 8, 1996, a sheriff's detective, Detective Baxley, and a worker from the Department of Children and Family Services each questioned C.B. C.B. again denied ever having any sexual contact with Respondent. In November 1996, C.B. returned to live with his parents. On November 13, 1996, the day that C.B.'s father made his first court appearance, with some direction on what needed to be said to the state attorney from Detective Baxley, C.B. told the state attorney, in the presence of both parents, that he did not want to press charges against his father and that the "fight" was his fault. The charges were subsequently dropped. On November 18, 1996, Detective Baxley and Detective Cameron interrogated C.B. Towards the end of the interview, C.B. accused Respondent of having inappropriate sexual contact with him on two occasions. C.B. alleged that he had masturbated Respondent's penis in Respondent's cabin at camp in the summer of 1996.1 C.B. also alleged that he had masturbated Respondent's penis on Respondent's boat in Crystal River sometime in the early Fall of 1996, within weeks of the beginning of school. The detectives had C.B. call Respondent. They taped the conversation without Respondent's knowledge. C.B. told Respondent that the police had given him a polygraph when in fact they had used a computer voice stress analyzer. Respondent told C.B. he had nothing to worry about as long as he told the truth. The police interrogated C.B. again on November 27, 1996. During this interview, C.B. accused Respondent of inappropriate sexual conduct involving masturbation of Respondent's penis in Respondent's science classroom or the computer room at Powell Middle School during after-school hours of the 1995-96 school year. Respondent was arrested on or about December 5, 1996. In January of 1997, C.B. alleged for the first time that he masturbated Respondent's penis in the parking lot at Disney World on October 20, 1995. On March 27, 1997, C.B. accused Respondent of having anal sex with him at the O'Connor residence during a "hurricane day" in October of 1996. On April 16, 1997, C.B. accused Respondent of having anal sex with him in the walk-in closet of the computer/storage room at Powell Middle School on two occasions in September or October of 1996. None of these various accusations were credible. Finally, there was no credible evidence that Respondent interfered with the relationship between C.B. and his parents in a manner which could reasonably be foreseen to harm C.B. Moreover, there is nothing in the statutes or rules of DOE which, absent harm, purports to make interference with a parent's custody or ignoring a parent's wishes a violation of those rules subject to discipline. Respondent met A.P., a sixth grade student at Powell Middle School, in 1995 as a participant in the after-school program. A.P. was a very out-going person, who demanded attention. He was also known for lying, especially when seeking attention. At times, Respondent, as director of the after-school program, had to discipline A.P. A.P. did not find Respondent to be strong, mean, violent, or scary. He never heard Respondent swear, tell dirty jokes, talk dirty, or threaten anyone. During his sixth grade year, A.P. would routinely visit Respondent's classroom during the school day even though Respondent was not one of his teachers. A.P. often visited Respondent during the after-school program. Respondent frequently gave A.P. a ride home after the after-school program. Respondent offered A.P. a scholarship to attend Camp Sangamon in the Summer of 1995. With the consent of his parents, A.P. attended camp at a reduced rate for three weeks that summer. In the Fall of 1995, A.P. was in the seventh grade. He was in a science class taught by Respondent. He continued to attend the after-school program. Respondent worked on computers during the times that A.P. and other students visited in the computer room. There is no persuasive evidence that pornographic pictures of nude males on the Internet ever appeared on the computer monitors while Respondent was operating a computer in A.P.'s presence. In January of 1996, A.P. continued to visit Respondent in Respondent's classroom or in the computer room after school. Respondent did not at any time ask A.P. to touch Respondent in a sexually inappropriate manner. Respondent never masturbated A.P.'s penis on school property. Respondent developed a plan for A.P. to work and earn money so that he could attend camp during the Summer of 1996. A.P. did not follow through with the plan. Consequently, he did not attend camp for the second time. In the Fall of 1996, A.P. entered the eighth grade at Powell Middle School. A.P. continued to visit Respondent in the computer room after school up until the police arrested Respondent. Just before Respondent's arrest, Detective Baxley interviewed several of Respondent's students. One of those students was A.P. Of his own accord, Detective Baxley went to A.P.'s home to interview him. During the interview, A.P. told the detective that Respondent had shown him pornographic pictures from the Internet in the school's computer room. A.P. also claimed that, on one occasion, A.P. declined Respondent's request for A.P. to touch Respondent's penis. On another occasion, Respondent allegedly masturbated A.P.'s penis. According to A.P., the latter two incidents took place in the computer room. At one point, A.P. also admitted to a teacher and a guidance counselor that he had lied about these incidents. Again the greater weight of the evidence shows that Respondent did not engage in any sexual activities with A.P. or engage in any improper behavior or relationship with A.P. Respondent never harmed A.P. in any way. J.K. was another student attending the after-school program at Powell Middle School. He went to school with both C.B. and A.P. He also attended Camp Sagamon during the summer for at least one summer. While at camp, J.K. testified that one time Respondent, while sitting on the porch of his cabin, asked him about what he thought about two men being together. However, J.K. does not remember what the specific words were. J.K. did not particularly respond and left. Nothing was said about anybody having sex. The statement did not have a sexual connotation. Clearly, no violation of the statutes and rules is supported by such a vague, out-of-context statement. J.K. also recalled one incident when Respondent accidentally bumped into J.K. while he was in the storage room. The incident occurred when J.K. came out from behind the door to the storage room while Respondent was entering. The back of Respondent's hand brushed J.K.'s groin area. Respondent was startled by the encounter, jumped back and said excuse me to J.K. Again, nothing in this incident even remotely supports a violation of statute or rules. Finally, J.K. testified about Respondent teasing him about not skinny-dipping while at summer camp. The episode occurred while J.K. and Respondent were on Respondent's boat with a group of other people. None of the others overheard the conversation or were in a position to overhear the conversation. There is nothing in the episode which suggests that the teasing was overbearing or disparaging. Again, no violation of the rules or statutes was shown.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Education enter a final order finding Respondent not guilty of any violations alleged in the Administrative Complaint and dismissing the Administrative Complaint. Jurisdiction is reserved over the issue of attorney fees should the parties not be able to agree on such. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 24th day of June, 2002.
The Issue The central issue in this case is whether the Respondent should be suspended or dismissed from her employment with the School Board of Dade County, Florida (Board).
Findings Of Fact Based upon the testimony of the witnesses the following findings of fact are made: Respondent was employed as a first grade elementary school teacher at Fulford Elementary School during the 1988-89 school year. In September, 1988, the principal at Fulford Elementary, Mrs. Pope, asked the primary education coordinator for region 2, Mrs. Neely, to perform an observation and assessment of all primary teachers at Fulford. Accordingly, Mrs. Neely observed all classrooms for grades kindergarten through three and made recommendations to the teachers and Mrs. Pope. Mrs. Neely visited respondent's classroom on several occasions and observed the Respondent's treatment of students and her teaching methods. Respondent did not follow the lesson plan for the daily lesson, did not have a schedule to specify times for subjects to be taught, and did not have a based reading program as required by the board. When Mrs Neely attempted to counsel Respondent in order to assist her to correct these deficiencies, Respondent became hostile and argumentative. During one visit Mrs. Neely observed the Respondent chasing students around the classroom. At first Mrs. Neely assumed the conduct to be a game of some type. When the conduct continued for several minutes without interruption or comment from Respondent, Mrs. Neely realized that the class was out of control and that the Respondent was unable to restore order. Consequently, Mrs. Neely took charge and got the children into their seats. When she instructed the class to get quiet, Respondent also took her chair and refused to speak. Ultimately, Mrs. Neely taught the class for the remainder of the lesson. Respondent refused to cooperate with Mrs. Neely and did not correct the deficiencies in teaching and class management which Mrs. Neely observed. During a portion of October and November, 1988, Vincent Golden was assigned to Respondent's classroom to work as a teacher's aide. During the three weeks he was with Respondent's class, Mr. Golden observed Respondent on a daily basis. Twice during this period Respondent grabbed a student named Devon by the throat to reprimand inappropriate conduct. On another occasion Respondent grabbed a female student by the hair in order to chastise the student. In a fourth incident, Mr. Golden heard the Respondent instruct students in the class to chase down another student. This chase resulted after Respondent had thrown off her own shoes, failed at catching the student within the room, and had become frustrated the student bolted from the classroom. Mrs. Pope apprehended the errant student and Respondent's posse in the halls. During the fall of 1988, Mary Williams was employed as a systems aide at Fulford Elementary. On one occasion she observed two students outside of Respondent's classroom who were unable to open the door because Respondent and a student were holding it closed from the inside. One of the students was crying hysterically and was taken to the library to calm down. On a second occasion Respondent refused to allow a new student who was handicapped into her room. Mrs. Williams went to Respondent's classroom almost everyday to ask Respondent for her reading groups. It was Ms. Williams' responsibility to enter the reading group information into the school computer. Respondent refused to provide the reading group rosters. During the fall of 1988, Charles Mixon supervised a maintenance crew at Fulford Elementary. One day while Mr. Mixon was observing a crew mowing the lawn adjacent to Respondent's room, he saw Respondent shove two students out of the classroom. Mixon then overheard Respondent tell the students to fight outside if they wished to continue. The students were then left in the hall unsupervised. On another occasion Mr. Mixon overheard the Respondent tell a teacher to kiss her backside. Mr. Mixon watched Respondent make the comment as she pulled her dress halfway up. Lossie Jordan was an exceptional education teacher at Fulford Elementary during the 1988-89 school year. On one morning Ms. Jordan was in the office copying some materials when Respondent approached her and asked her if she had a squirrel for her. When Mrs. Jordan replied in the negative and asked Respondent why she would ask that, Respondent told her that a woman had come to her house the day before to tell her to ask Mrs. Jordan that question. No further explanation was offered by Respondent. A second incident occurred when Respondent entered Mrs. Jordan's classroom to drop students of for instruction. Mrs. Jordan was in the process of showing another teacher a new blouse she had bought. Upon entering, Respondent told the students that Mrs. Jordan was a thief and that she had stolen the new blouse. A third incident arose when Respondent, Mrs. Jordan and Mrs. Forbes, another teacher, were in the workroom waiting for the copy machine. Respondent was the third to center the room and when Mrs. Forbes told her that they were ahead of her to use the machine, Respondent shoved Mrs. Forbes against Mrs. Jordan who fell against the cabinets. Respondent then left the workroom. On still another occasion, Respondent told Mrs. Jordan to kiss her backside. On October 27, 1988, Mrs. Pope called Respondent into her office for a conference for the record. Mrs. Pope was concerned about the number of incidents which had been reported regarding Respondent's conduct. Mrs. Pope had also observed Respondent's class. During one observation Mrs. Pope watched a group of students who were sitting at a back table in Respondent's class. One student pulled another student's sweater and tied it behind his back so that the student could not use his hands. Mrs. Pope mentioned the problem to Respondent who advised her that since the student had gotten himself into the situation he would have to get himself out of it. On other occasions Mrs. Pope observed Respondent chasing students around the classroom. Respondent failed to properly supervise students in her classroom. As a result, Mrs. Pope was required to return students to Respondent's room after they wandered out into the school halls. Another unsupervised student got her arm caught in a chair and was brought to Mrs. Pope who had to contact Fire Rescue to release the child's arm. On November 2, 1988, Mrs. Pope directed Respondent to come to the office for a conference with a parent regarding allegations the parent's child had made. Respondent refused to meet with the parent. After directives from Mrs. Pope not to lock her classroom door, Respondent locked her door. After directing Respondent not to leave her class unsupervised, Mrs. Pope found Respondent's class unsupervised at least four times. Respondent had physical contact with students to administer discipline after Mrs. Pope directed her to refrain from such conduct. Respondent refused to accept a handicapped student after Mrs. Pope directed her to admit the child into her class. Following a number of the incidents described above, parents asked Mrs. Pope to remove their children from Respondent's class. Respondent's effectiveness was impaired by her behavior and her failure to properly supervise and instruct her class. Mrs. Pope directed Respondent to an employee assistance program. Ultimately, following a conference with Dr. Monroe, Dr. Poiret, a psychiatrist, performed a psychological assessment of Respondent. Following interviews with Respondent on November 22, 1988 and December 1, 1988, Dr. Poiret determined Respondent was not medically fit to carry out her assigned responsibilities. Consequently, Respondent was relieved of her teaching duties and spent the remainder of the school year on leave. During the leave Respondent was to undergo individual psychotherapy on at least a weekly basis and to have a complete physical examination. Later, Dr. Monroe requested that Respondent submit documentation regarding her psychotherapy Respondent did not do so. In August, 1989, Dr. Poiret met with Respondent again to evaluate her ability to return to the classroom. As in the prior instances, Respondent continued to be hostile, noticeably irritable and angry. Since she had made no significant improvement, Dr. Poiret determined Respondent was not medically fit to discharge her teaching duties due to a lack of emotional stability. Respondent repeatedly demonstrated a failure to effectively and efficiently manage the behavior of students assigned to her classroom. She failed to provide a curriculum of education to the students in her class, failed to communicate appropriately with her peer teachers and administrators who attempted to assist her, and failed to carry out her professional1 duties. As a result, Respondent's effectiveness in the school system has been seriously impaired. Respondent failed to take corrective measures to amend her deficiencies, failed to obey reasonable instructions given to her by the principal, and failed to present documentary evidence of her successful completion of therapy required to rehabilitate her for classroom duties.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County, Florida enter a final order dismissing the Respondent from her employment with the public school district. DONE and ENTERED this 21st day of May, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 21st day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-7035 PETITIONER: Paragraph 1 is accepted. Paragraphs 2 and 3 rejected as irrelevant. Paragraphs 4 and 6 accepted as addressed in paragraph 8, otherwise rejected as irrelevant or recitation of testimony. Paragraph 5 is rejected as irrelevant. Paragraphs 7 and 8 are rejected as irrelevant. Paragraph 9 is accepted. Paragraph 10 is accepted. Paragraph 11 is rejected as hearsay. Paragraph 12 is accepted. As addressed in paragraph 5, paragraphs 13 through 15 are accepted; otherwise rejected as irrelevant or contrary to the weight of the evidence. Except as addressed in paragraph 9, paragraph 16 is rejected as hearsay. Except as addressed in paragraphs 2 through 4, paragraphs 17,18, and 19 are rejected as irrelevant. Paragraph 20 is accepted. The first sentence of paragraph 21 is accepted. The balance of the paragraph is rejected as irrelevant or hearsay. The first six sentences of Paragraph 23 are accepted. The balance is rejected as repetitive, irrelevant or argumentative. Paragraph 24 is rejected as repetitive or irrelevant. Paragraph 25 is rejected as recitation of testimony. Paragraph 26 is accepted to the extent addressed in paragraph 6; otherwise rejected as irrelevant, recitation of testimony or argumentative. Paragraph 27 is accepted. Paragraph 28 is rejected as irrelevant. Paragraphs 29 through 31 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is rejected as contrary to the weight of credible evidence. Todate, Respondent has not submitted written or other evidences from a treating physician which would establish she is medically able to return to the classroom. Paragraph 2 is rejected as contrary to the weight of the credible evidence. COPIES FURNISHED: Irma Annette Butler Lowe 17350 N.W. 17th Avenue Miami, Florida 33056 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether Petitioner established “just cause” to discipline Respondent as a teacher.
Findings Of Fact Since 2004, Ms. Gardner has been employed by the Glades County School District as a teacher. During the 2009-2010 school year, she taught language arts to middle school students at West Glades School. During the relevant time period, Ms. Gardner worked under a professional service contract. A teacher's professional service contract automatically renews each year, and the contract can be terminated only by a showing of “just cause” or by performance deficiencies outlined in section 1012.34, Florida Statues. On April 16, 2010, Ms. Gardner was teaching language arts to seventh grade students. The students were supposed to be working on the language arts assignment. However, as Ms. Gardner walked around the class, she found some students working on their math homework. Frustrated by students doing math homework during her language arts class, Ms. Gardner confiscated the students' math work. In one instance, Ms. Gardner tore a student's math homework in half. One of the students whose math work Ms. Gardner confiscated was C.H. C.H. was generally described as a "good student." Ms. Gardner placed C.H.'s math workbook on a table near Gardner's desk at the front of the room, and redirected C.H. to the language arts assignment. At some point in the class, C.H. walked up to the front of the classroom and removed her math workbook from the table without Ms. Gardner's permission. As C.H. turned to walk back with her book, Ms. Gardner forcefully grabbed C.H.'s arm from behind. C.H. credibly testified that Ms. Gardner "grabbed my arm and turned me around and pushed me, and my books fell." C.H. started crying, and walked out of the classroom. As C.H. was leaving the classroom, Ms. Gardner told C.H. to return to her desk. C.H. stated that she was crying because she was "shocked." C.H. walked to the School's office, which is in the same hallway as Ms. Gardner's class. When she arrived at the office, C.H. was crying and visibly upset. The school guidance counselor took C.H. to speak with Principal Davis. Principal Davis found C.H. to be "distraught, crying, [and] shaking." Principal Davis spoke with C.H. to determine why the student was upset. C.H. informed Principal Davis that Ms. Gardner had become angry with C.H., and that Ms. Gardner had snatched C.H.'s books, grabbed her arm and pushed her. Based on the seriousness of the allegation, Principal Davis decided to immediately investigate C.H.'s claims by obtaining statements from C.H.'s classmates. After the language arts class, the next class for C.H. and her classmates was math taught by Ms. Wills. Before the math class began, Ms. Gardner came to Ms. Wills' class and gave her C.H.'s workbook and other students' papers. Ms. Gardner informed Ms. Wills that several of the students had been doing math homework when the students should have been doing their language arts work. Ms. Wills credibly testified that Ms. Gardner was "really upset" with students doing their math homework in her class, and appeared agitated. Shortly after Ms. Wills' class began, Principal Davis came to speak with the students. Principal Davis released Ms. Wills to take an early lunch, and then asked the students to write down anything "bothersome" that has happened in Ms. Gardner's class during the prior period. A majority of the students provided written statements that, in essence, corroborated C.H.'s story. After reviewing the students' statements, Principal Davis decided she needed to investigate further. Principal Davis met with Ms. Gardner and advised her about C.H.'s allegation that Ms. Gardner had inappropriately touched C.H. Because the investigation could result in discipline, Ms. Gardner decided to have a union representative present when she gave her statement. Further, Principal Davis informed Ms. Gardner that Ms. Gardner should go home until the investigation was completed. On April 21, 2010, Ms. Gardner gave her statement to Principal Davis. Ms. Gardner admitted to confiscating C.H.'s math notebook and calculator. Ms. Gardner indicated that later in the class C.H. walked across the room and retrieved her math notebook without permission. Ms. Gardner stated that she merely "touched" C.H.'s arm to redirect the student, and to put the math notebook back on the table. C.H. dropped the math notebook, and left the class. According to Ms. Gardner's interview, she did not forcefully grab C.H.'s arm. Ms. Gardner's testimony that she merely "touched" C.H.'s arm was consistent with the interview given to Principal Davis. The undersigned finds Ms. Gardner's characterization that she only "touched" C.H.'s arm without force not to be credible. Ms. Gardner's testimony concerning the events was often evasive on key points. For example, when asked if she recalled that C.H. was crying when leaving the classroom, Ms. Gardner indicated that she did not. Yet, in her deposition, taken just a week earlier, she testified that C.H. was crying when she left the classroom. Similarly, Ms. Gardner was evasive concerning questions about whether or not she acted in frustration or her understanding that the change in her contract status was the result of her touching C.H. As a result of Ms. Gardner's evasiveness, the undersigned found her credibility damaged. C.H. did not receive any physical injury from the incident on April 16, 2010. After completing her investigation on April 21, 2010, Principal Davis provided Wayne Aldrich, superintendent for Glades County School Board, with the following recommendation: As a result of a battery allegation by a student against Ms. Gardner, I have conducted a thorough investigation and found the allegation to be substantial. Ms. Gardner has been suspended with pay since the incident occurred on Friday, April 16. As a result, I have followed protocol required by the Florida Department of Education Office of Professional Practices and I am recommending the following action: Placement of a narrative of my investigation in her personnel file. Change of her contractual status to fourth year annual for 2010-2011 school year. Recommendation of termination if any further substantiated incidents of intentional physical contact with a student occur. I am requesting that she return to the classroom on Friday, April 23, 2010. Principal Davis testified that she considered the recommended change in Ms. Gardner's contract status from a professional service contract to a "fourth year annual contract" as less severe than termination or suspension. A "fourth year annual contract" would allow Ms. Gardner to return to professional service contract after being on an annual contract for one year. Principal Davis explained that Ms. Gardner had been evaluated as a high-performing teacher in the past, and it was hoped that she would return to that level after this discipline. At the end of the 2009-2010 school year, Principal Davis evaluated Ms. Gardner as "needs improvement." Under the comments section, Principal Davis noted "offer to wait for 2010 FCAT declined." There was no evidence tying this "needs improvement" evaluation to the incident that occurred on April 16, 2010. Superintendent Aldrich reviewed Principal Davis' investigation and recommendation. Based on his review, Superintendent Aldrich recommended that the School Board follow Principal Davis' recommendation, including the change in Ms. Gardner's contract status. Similar to Principal Davis, Superintendent Aldrich believed that the change in Ms. Gardner's contract status was less severe than a suspension. Superintendent Aldrich testified that a teacher should use physical force only "if the student was out of control and would be in a position to do physical harm to another student or themselves." However, no School Board Policy concerning the use of physical force was offered into evidence. The School Board, without notice to Ms. Gardner concerning her rights to an administrative hearing, adopted Principal Davis' recommendations. Ms. Gardner, subsequently, requested a formal administrative hearing and reconsideration of the School Board's decision. The School Board denied her request, finding that Ms. Gardner had waived her right to a hearing. Ms. Gardner filed an appeal. The Second District Court of Appeal found the following: It is undisputed that the Board did not give Ms. Gardner written notice of her right to seek administrative review and the time limits for requesting a hearing. Under these circumstances, the Board failed to provide Ms. Gardner with a point of entry into the administrative process before taking adverse action on her contract status. It follows that Ms. Gardner did not waive her right to request a formal hearing. Consequently, the appellate court reversed the School Board's decision, and remanded the case for further proceedings. Gardner v. Sch. Bd. of Glades Cnty., 73 So. 3d 314 (Fla. 2d DCA 2011). While Ms. Gardner's appeal was pending before the Second District Court of Appeal, Ms. Gardner worked under the fourth year annual contract for 2010-2011 school year. At the end of the 2010-2011 school year, Ms. Gardner's annual contract was not renewed. On remand, the School Board issued a May 16, 2012, letter, notifying Ms. Gardner of her rights to an administrative hearing. The School Board framed the issue as “to challenge the change in her contract status from a professional service contract for fourth year annual contract.” In the Joint Pre- Hearing Stipulation, the parties identified a factual issue for resolution as “[w]hether Gardner's physical contact with the student, C.H., constitutes “just cause” for discipline.” Further, the parties’ stipulation identified three disputed issues of law: 1) Whether the disciplinary options available to Petitioner included placement of Ms. Gardner on a fourth year annual contract status; 2) whether the placement of Ms. Gardner on fourth-year annual contract status was the appropriate discipline; and 3) whether the School Board's action in denying Ms. Gardner's request for a formal hearing in July 2010 renders the placement of Gardner on a fourth-year annual contract status for the 2010-2011 school year, and the non-renewal of her annual contract at the end of the 2010-2011 school year void ab initio. Before considering the legal issues identified by the parties, it is clear that the factual dispute of whether or not “just cause” exists must be addressed first. If “just cause” does not exist, then the issue of the penalty becomes moot. At the hearing, the parties presented testimony concerning the facts underlying the School Board's action here, and whether or not “just cause” existed to sanction Ms. Gardner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Glades County School Board enter a final order finding: The record contains insufficient evidence of "just cause" in order to discipline Ms. Gardner; and Pursuant to section 1012.33(6)(a), Florida Statutes (2010), immediately reinstate Ms. Gardner under her professional service contract and pay her back salary. DONE AND ENTERED this 11th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 February, 2013.
The Issue The issue is whether, as of June 30, 2013, Petitioner may nonrenew Respondent's charter agreement (Charter) to operate a charter school, pursuant to section 1002.33(8)(a)2. and 4., Florida Statutes.
Findings Of Fact Respondent operates a charter school pursuant to the Charter, which was entered into in December 2008 by Petitioner, as sponsor, and Life Skills Center Palm Beach County, Inc. Effective June 30, 2012, Life Skills Center Palm Beach County, Inc., changed its name to Excel Leadership Academy, Inc. At all times, the corporation chartered to operate the school was a Florida not-for-profit corporation, and Respondent has been a nongraded charter school with low-performing students. The Charter expires June 30, 2013. Charter General Provision G states that Petitioner may nonrenew the Charter "for good cause." On November 1, 2012, Petitioner's Charter School Department met with representatives of Respondent to discuss an upcoming renewal program review that Petitioner would undertake in order to determine whether it should renew the Charter. During the meeting, Petitioner's representatives went over the review instrument that would be used in conducting the renewal program review. In January 2013, an employee of Petitioner with financial expertise visited Respondent's school, examined Respondent's financial records, and spoke with Respondent's relevant representatives. In the same month, an employee of Petitioner with English-language-learner(ELL) expertise visited Respondent's school, examined Respondent's ELL records, and spoke with Respondent's relevant representatives. In February 2013, employees of Petitioner with academic expertise visited Respondent's school, examined Respondent's academic records,, and spoke with Respondent's relevant employees. As a result of these examinations conducted as part of the renewal program review, Petitioner found deficiencies and decided not to renew the Charter. By letter dated February 27, 2013, Petitioner's Superintendent informed Respondent of his intent to recommend to the School Board, at its meeting on March 6, 2013, that it vote to nonrenew the Charter. On March 6, the School Board met and voted to approve the Superintendent's recommendation. By Written Notice of Non-Renewal of Charter Contract dated March 14, the School Board formally notified Respondent of the nonrenewal of the Charter and itemized the grounds for this action. This March 14 notification is the source of the allegations contained in the Preliminary Statement, above. Charter Section 1.0.C identifies the target group of students to be served by Respondent as at-risk students, aged 16-21 years--including ESE students, disabled students, ELL students--whose needs may be better served by a nontraditional school given that the students may be unable to attend school during a normal school day due to work requirements to support a family, pregnancy, truancy, academic deficits, disruptive behavior, or limited proficiency in English. Charter Section 1.0.D recognizes that at-risk students have different needs. Section 1.0.D states that Respondent will employ an Employability Specialist to prepare the students for employment. Section 1.0.D also states that Respondent will emphasize one-on-one instructional systems, and the curricula will cover the "core academic subjects" of reading, language arts, mathematics, social studies, and science, as well as vocational and social skills. Charter Section 1.0.E identifies the mission of the school as serving at-risk students by giving them a second chance to obtain a quality education and employability training and placement. Charter Section 2.0.A projects total enrollment for each of the five school years from 2008-09 through 2012-13 at 400 students in the ninth through twelfth grades to be included in the school. Addressing curriculum, Charter Section 3.0.A states: [Respondent] agrees to ensure that reading is a primary focus of the curriculum and that resources are provided to identify and provide specialized instruction for students who are reading below grade level. The curriculum and instructional strategies for reading must be consistent with the Sunshine State Standards and grounded in scientifically based reading research. Charter Section 3.0.D provides that Respondent "agrees to implement an instructional program consistent with the program as specified in the Student Progression Plan of [Petitioner] " Charter Section 4.0.A states that Respondent is a drop-out prevention and academic-intervention program. Section 4.0.B states: "[Respondent] will establish a systematic method for assessing student progress using the District's Pupil Progression Plan and performance at each grade using valid and reliable procedures and following the requirements of the law pursuant to Sections 1000.03 and 1008.431, F.S." Section 4.0.B describes baseline and improvement assessment as follows: A baseline for student academic achievement will be established upon enrollment in the educational program. This baseline will be established by analysis of results from the standard assessment administered at the school, previous FCAT scores, and an electronic assessment tool that measures mastery of Sunshine State Standards in language arts, reading, and math. . . . Student improvement will be measured by post-testing with the standard assessment utilized at the [school] and FCAT scores. In addition, students will be assessed by nationally normed assessments (administered twice each school year) that provide information about student achievement. Student improvement will also be measured on a "value added" basis taking into account the student's beginning achievement level (baseline) and progress made through the instructional year. Student progress will be measured and monitored to ensure growth occurs annually. Nationally, norm-referenced tests will also be particularly valuable to measure growth of students who have previously passed the criterion-referenced FCAT in tenth grade. [Respondent] will continue to measure academic growth for this population with norm-referenced tests. Standards based assessments as prescribed by the state governing authority will be administered in accordance with established state law. Charter Section 4.0.F(5) provides that all graduates will have completed at least 90 days or 120 hours of employment, volunteering, job shadowing, or mentoring. Charter Section 4.0.F(8) states that, each year, Respondent shall increase its enrollment by the lesser of 20% or 100 students until it reaches facility capacity. Attainment of "[t]his goal indicates that the program is working and building a reputation within the community for success." Charter Section 5.0.B states that Respondent will offer an individualized program for each student to progress at his own pace using one-on-one instructional systems. Each student will attend one school session, which consists of four hours of academic learning and one hour of vocational or job readiness training. "Educational curriculum, resources, and lessons can be delivered by teachers through a number of teaching methodologies, utilizing those that best meet the specific needs of the student." Charter Section 5.0.C states: "Students will be supervised by a Florida certified teacher or skilled instructional personnel at all times from arrival at Charter School to departure." Charter Section 8.0.A. provides that the students will take "all applicable State Standardized tests consistent with the sponsor's Student Progression Plan." Respondent is responsible for administering the tests. Charter Section 13.0.J states that Respondent will provide ESE services as provided by each student's IEP. If a parent chooses Respondent's school and it cannot implement the student's IEP, prior to enrollment, the IEP team must meet, revise the IEP, and determine how the IEP will be implemented at Respondent's school; in the alternative, the IEP team may determine another appropriate setting for the implementation of the student's IEP. Section 13.0.J.4 provides that Respondent must "hire an appropriate number of ESE certified teachers to provide ESE services." Further, Respondent must notify Petitioner "immediately" if "the certified ESE teacher is no longer employed or providing services to ESE students as required in their IEPs." Section 13.0.J.5 states: "A certified ESE teacher must maintain written documentation of consultative services for any student whose IEP indicates consultative services." Charter Section 13.0.O provides that students with limited proficiency in English "will be served by ESOL-endorsed personnel." Charter Section 20.0.C provides that teachers shall be Florida-certified as teachers, as required by chapter 1012, Florida Statutes, and the No Child Left Behind Act of 2001. However, Section 20.0.C allows Respondent to contract with "skilled selected non-certificated" personnel "to provide instructional services in the individual's field of specialty or to assist instructional members as paraprofessionals in the same manner as defined by Chapter 1012, F.S., and as provided by the State Board of Education Rule for Charter School Governing Boards." The two most prominent deficiencies are facts to which Respondent stipulated. Its enrollment is declining, and its financial condition is deteriorating due to a general fund deficit. These facts are linked. Respondent attributes its enrollment declines to the opening of another charter school, called Mavericks, near the original location of Respondent's school. At its peak, Respondent enrolled 378.5 students during the 2010-11 school year. For the 2011-12 school year, Respondent's enrollment declined by 206.5 students to 172 students. For the 2012-13 school year, Respondent's enrollment declined by another 93 students to only 79 students. Not surprisingly, given the extent to which enrollments drive revenues at schools, Respondent's financial condition is, at best, grave and, at worse, moribund. For fiscal year ending June 30, 2012, Respondent's auditor determined that Respondent maintained a general fund deficit of $38,057. It is clear from more detailed information in the financial report that the auditor overstated the deficit, which was actually $25,027, but this, too, is a material deficit. The materiality of the deficit, as well as the rapid rate of Respondent's financial deterioration, is revealed by the facts that, for fiscal year ending 2012, Respondent's expenses exceeded its revenues by $162,039--roughly, an order of magnitude greater than the excess of expenses over revenues by $17,771 for fiscal year ending 2011. Respondent's liabilities of $155,008 exceed its assets of $146,129 by $8879, as of June 30, 2012. The link between declining enrollment and financial deterioration is confirmed by the auditor's finding that Respondent's enrollment shortfall, as compared to its projections, resulted in the failure to earn $1.4 million in revenues. During the 2012-13 school year, Respondent has implemented drastic measures to try to control expenses. During this school year, Respondent terminated its management contract, moved the school to a smaller facility with lower occupancy costs, and, as noted below, cut labor expenses by not replacing instructional employees. In themselves, cost-cutting measures would seem to slow the rate of financial deterioration, although the reduction in capital and operational expenses may as likely be met by an equal or greater reduction in revenues, as market forces drive potential students to more successful charter schools. On this record, Respondent's revenues and expenditures appear to be declining in tandem, as Respondent's operations wind down and Respondent approaches financial collapse. Petitioner has thus proved Charges 2.b and 8. Greatly exacerbating the situation, Respondent's serious operational deficiencies, which violate material provisions of the Charter, could only be eliminated by significant increases in expenditures. For example, since sometime in November 2012, Respondent operated with only two instructional employees: a teacher certified in social science and a teacher certified in ESE, Ms. Kangal. During this period of time, each teacher was required to perform the lead-teaching duties in the classes that Respondent was still able to offer. However, during this period of time, numerous students attending the school had IEPs whose implementation required ESE consultative services in the form of support facilitation. For these students, a lead teacher must provide regular instruction to the class, and the ESE teacher must simultaneously provide specialized instruction to the ESE students whose IEP called for consultative services in the form of support facilitation. This exposure to regular instruction with supplemental specialized instruction is critically important to these ESE students; yet, for several months, Respondent was unable to implement this provision of these IEPs, nor any other IEPs that called for direct specialized instruction. Failing to discharge its obligations with respect to ESE instruction, Respondent also failed to discharge its Charter obligation notify Petitioner of the cessation of these ESE services. Petitioner thus proved Charges 11 and 12. At no time during the 2012-13 school year did Respondent employ an ESOL-endorsed teacher. Although this deficiency pales in comparison to the cessation of ESE services for several months, the failure to address the needs of ESOL students is another serious deficiency. Petitioner thus proved Charge 13. The critical subject of reading is the focus of multiple deficiencies. Respondent maintained no lesson plans in reading. The person whom Respondent identified as the reading teacher, Ms. Kangal, is reading-endorsed, but is also the sole ESE-certified teacher at the school. Ms. Kangal conceded to Petitioner's representatives that she did not teach reading. In response to questions as to how reading was taught, Respondent's principal, Ms. Kemp, replied that it was taught across the curriculum and infused in all classes. But evidence at the school did not support these ambitious claims. The classrooms are bereft of such devices as word walls, curriculum- based posters, books, study guides, or even textbooks. Respondent's students included approximately 69 Level 1 and Level 2 readers, whose reading skills require intensive remediation efforts, including enrollment in an intensive reading class. Only three of these students three enrolled in such a class. Respondent's assessment of reading was deficient. Respondent never obtained benchmark data from available standardized tests at the start of the 2012-13 school year, so that it could later measure growth in reading achievement by the end of the school year. At no time did Respondent assess the reading fluency of any of its students. The record is not entirely clear as to whether Respondent has adopted Petitioner's reading plan. District data reveals no such election, but Florida Department of Education data reveals that Respondent has elected to implement Petitioner's reading plan. If Respondent did not adopt Petitioner's reading plan, there is no evidence that Respondent had adopted any other reading plan, so the absence of a reading plan would be a serious deficiency. Respondent claims that it adopted Petitioner's reading plan for the 2012-13 school year, as it had for the preceding school year. Given the greater weight ordinarily attaching to an affirmative indication as opposed to the absence of an affirmative indication, it is more likely than not that Respondent adopted Petitioner's reading plan for the 2012-13 school year. However, this reading plan requires FAIR and SRI assessments throughout the school year, and Respondent did not administer these tests, nor has it adopted alternative means of obtaining the same data, which is necessary for any meaningful implementation of Petitioner's reading plan. Additionally, there is no evidence that Respondent was implementing any reading program whatsoever, even if it had adopted Respondent's reading plan. Petitioner thus proved Charges 1, 3.a, 3.b, 4, 6.b, 6.c, and 6.f. At the start of the 2012-13 school year, Respondent employed four teachers: Ms. Shaheed, who is certified in language arts and endorsed in reading; Mr. Innocent, who is certified in math; Mr. Kyryliw, who is certified in social science; and Ms. Kangal, who is described above. (A fifth teacher, Mr. Ramos, had been hired to teach biology, but he quit prior to the first day of school.) In November 2012, Ms. Shaheed and Mr. Innocent quit and were not replaced, necessitating the removal of Ms. Kangal from her direct and supportive ESE instructional duties and her reassignment to nearly all of the lead-teaching duties formerly handled by both of the teachers who had just quit. This reduction in instructional personnel by half prior to the end of the first semester of the 2012-13 school year prevented Respondent from providing instruction in all of the core academic subjects. Clearly, biology, a required course for graduation, was neglected. Belated attempts to enroll Respondent's students in an online biology course, without any live instructional support, were inadequate to address this required subject because the online course is a demanding course that is taught on grade level. Math was also neglected. During the renewal program review, one of Petitioner's representatives with expertise in math visited a computer lab where students were apparently working in Algebra I, Algebra II, and geometry. When the representative engaged with one of the students, the student asked if she could answer a question. She did so, and the student excitedly told one of his peers that this teacher knew math and could help them. Suggesting that the math lab may have been staged or, if managed at all, managed incompetently, Petitioner's representative noticed that, when Ms. Kangal returned to the room after leaving the students to work on their own on the computers, she handed out Algebra I workbooks to all the students, even to those who, online, had been working on Algebra II and geometry. If Ms. Kangal had even passing familiarity with the workbooks, she would have noticed that they were to prepare the students for the end-of-course Algebra I exam--a total waste of time for those students purportedly working on Algebra II and geometry a few minutes earlier. Petitioner thus proved Charges 5, 6.d, and 9. With even less cause, in terms of cost savings, Respondent has abandoned its undertaking in the Charter to ensure that all of its students perform 90 days or 120 hours of employment, volunteering, job shadowing, or mentoring. Respondent kept no log of any time spent on these important vocational-preparation activities, nor did Respondent have any agreements with employers to help its students meet this requirement. Petitioner thus proved Charge 7. The above-detailed deficiencies involving declining student enrollment, deteriorating finances, failing to implement ESE students' IEPs, failing to provide an ESOL-endorsed teacher, multiple failings in providing reading instruction, and failing to provide biology and math instruction provide ample good cause for the nonrenewal of the Charter; it is unnecessary to consider the remaining charges. As noted above, Respondent's enrollment has plunged 75% in two school years, and its enrollment-driven revenues are likewise in steep decline. These facts, alone, are good cause for nonrenewal. Worse, Respondent is failing even to address the most basic needs of its ESE students for specialized instruction, nearly all of its dwindling student population for intensive reading instruction, its ESOL students for language issues, its many students seeking to recover the credits necessary for graduation in terms of basic math and biology courses. In the face of these factors driving it to nonoperational status, Respondent has offered no semblance of an educational/financial/marketing plan. Instead, Respondent feebly has tried to transfer the blame for its current situation from itself, where it belongs, to Petitioner. But Respondent's affirmative defense of inadequate assistance from Petitioner fails on two grounds. First, the evidence does not support this claim. Petitioner made available to Respondent the same training and technical assistance that it made available to other schools--charter and noncharter. Second, as to the above- detailed deficiencies, Respondent's failures do not appear to have been of a type that additional technical assistance would have helped. Respondent failed in its most basic duties to educate its students. Failing even to discharge its duty to notify Petitioner of critical changes, such as the cessation of ESE services and loss of teachers, Respondent's complaints that Petitioner failed to help are disingenuous.
Recommendation It is RECOMMENDED that the Palm Beach County School Board enter a final order declining to renew the Charter. DONE AND ENTERED this 6th day of June, 2013, 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 6th day of June, 2013. COPIES FURNISHED: Christopher Norwood, Qualified Representative Governance Institute for School Accountability 14844 Breckness Place, Suite 100 Miami Lakes, Florida 33016 Bruce A. Harris, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 E. Wayne Gent, Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, C-316 West Palm Beach, Florida 33406-5869 Dr. Tony Bennett, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
