Findings Of Fact During 1978 and 1979, Petitioner was employed as a full-time teacher on an annual contract basis with the Leon County School Board. The principal at the Petitioner's school did not recommend him for reappointment for the 1979- 1980 school year. Petitioner, accordingly, was not reappointed. The Leon County School Board has adopted rules relating to the reappointment of teachers. School Board Rule 2.02(3)(a) provides: The building principal shall submit to the Superintendent for reappoint- ment, those members of his faculty recommended for reappointment. These reappointments, upon approval of the Superintendent, shall be recommended to the School Board at least six weeks prior to the close of the post school conference. In accordance with this rule, since Petitioner was not recommended for reappointment by his principal, he was not recommended by the superintendent and not reappointed by the School Board. Petitioner was not terminated from his position as a part of a School Board layoff. The Petitioner's job performance had been satisfactory. He was not recommended for reappointment because the school had three persons available to teach courses for which there were only two positions. The Petitioner was the least senior of the three persons and did not have tenure. Accordingly, he was not recommended for reappointment.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of this case, Respondent, Richard P. Rost, was employed by the Board as the principal at Rock Lake Middle School. During the week of October 7 through 11, 1991, the Seminole County School District was to perform an FTE survey in accordance with state-mandated guidelines. The purpose of the survey was to perform a head count of the students enrolled in the public school system and to designate an FTE value according to the type of student. The results of the survey were utilized by the state to appropriately distribute funding among the school districts. Students enrolled in special classes receive a higher weighted FTE than those enrolled in regular classes. Teachers are required to execute rolls and to certify the names of the students enrolled in their classes for each period of the surveyed school day. The pertinent survey date for Rock Lake Middle School (Rock Lake) was October 11, 1991. On that date teachers at Rock Lake filled out FTE forms that listed the students enrolled in their classes for each period of the school day. On the morning of October 11, 1991, Respondent administratively reassigned thirteen students from their regular class assignments to the in- school suspension program at Rock Lake. None of the students so assigned met the criteria for placement into the in-school suspension program. Respondent placed the students into the in-school suspension program so that when the FTE survey was performed, the records would show that thirteen students were enrolled in that section. The FTE weight for a student enrolled in an in-school suspension program is greater than the FTE weight for physical education. Several of the students assigned to the in-school suspension program on October 11, 1991, were pulled from their regular physical education classes. Respondent has admitted that he made the class changes on the survey date but maintains he was authorized to do so since the students would receive an educational benefit from the placement, and since the placement might be considered a resource period for the students. Further, Respondent maintains that Willie Holt, the director of middle school education, had indicated that it was mandatory for Rock Lake to have fifteen students in its tutorial program and thirteen students in the dropout prevention program. In order to be placed in the in-school suspension program, a student must have a referral for misconduct that would normally warrant an out-of-school suspension. Additionally, upon completion of the referral form, the student and his parents must complete an in-school suspension contract acknowledging and accepting the placement. No paperwork was completed for the students administratively assigned by Respondent on October 11, 1991. Because students were erroneously placed in the in-school suspension program, they were surveyed based upon the FTE weighted rate of 1.707. Accordingly, unless caught by the state through an audit, or voluntarily disclosed through an amended FTE report, Seminole County Schools would receive a higher level of funding than it was entitled. While Respondent could not personally gain from the FTE report and increased funding, his actions placed the Board in a position of liability for the improper survey results. More critical to this case, however, is the fact that Respondent has never conceded that he made a mistake in placing the students in the in-school suspension program. Respondent directed his staff to respond to the inquiries about the placements even though he knew, or should have known, that the students placed in the in-school suspension program did not meet the criteria for same. Specifically, Ms. Schalls, the guidance director, wrote a letter explaining the assignments for Respondent's signature as a result of the inquiries related to the placements. Because Respondent directed him to accept the students into the class, Mr. Deyling, the in-school suspension teacher, incorrectly completed the FTE forms on the survey date. Because Respondent directed her to pull students from classes to send them to the in-school suspension class, Ms. Shalls, the guidance department director, executed passes for the thirteen students. To her credit, when questioned regarding the appropriate paperwork to support the assignment, Ms. Shalls would not complete the forms. The guidance staff had never, prior to this incident, placed students in the in-school suspension class. Respondent did not direct any school personnel to falsify school records. There was no drop out prevention program in effect at Rock Lake on October 11, 1991, which would have allowed Respondent to administratively assign the students to in-school suspension. The Respondent disregarded the rights of students by placing them in the in-school suspension class when he knew they did not meet the criteria for that placement. The Respondent failed to exercise good judgment in placing the students in the in-school suspension class when he knew they did not meet the criteria for that placement. The Respondent's effectiveness has been seriously impaired by the acts described above. Such acts constitute misconduct.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Seminole County, Florida enter a final order finding the Respondent guilty of misconduct in office and terminating his employment as a principal at Rock Lake. DONE and ENTERED this 17th day of November, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1992. APPENDIX TO CASE NO. 92-1353 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 10, 12 through 17, 20, 22, 23, 25, 27, 28, 30 through 33, 35, 40, 41, and 44 are accepted. Paragraph 11 is accepted but is irrelevant. Paragraph 18 is rejected as contrary to the weight of the evidence. The first sentence of paragraph 19 is accepted; the remainder is rejected as contrary to the record. Rost maintained he had the authority to make the placements complained of; in truth, he knew or should have known such placements were inappropriate. Paragraph 21 is rejected as argument. Paragraph 24 is rejected as irrelevant. Paragraph 26 is rejected as hearsay or irrelevant. Paragraph 29 is rejected as argument. With regard to paragraphs 34, 36, and 37, it is accepted that Respondent placed the students in the program inappropriately; otherwise rejected as repetitive, unnecessary or irrelevant. Paragraphs 38 and 39 are rejected as contrary to the weight of the evidence. Respondent requested that an explanation be drafted, he did not request any employee to falsify records or misrepresent what had occurred. Paragraphs 42 and 43 are rejected as contrary to the weight of the- evidence in that Respondent did not direct employees to violate the law. He directed the guidance team to choose students who might benefit from the decisions film to be placed in the class. That such action constituted error is based upon Respondent's indifference to the criteria for in school suspension and his goal of achieving a number in that program for FTE purposes. With the addition of the phrase "or should have known" after the word "knew" paragraph 45 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1, 24, 25, 41, 70, 71, 74, and 80 are accepted. Paragraphs 2 through 10 are rejected as argument, contrary to the weight of credible evidence, or irrelevant. With regard to paragraph 11, it is accepted that Respondent would not financially gain personally from the FTE survey; however, that he would seek to file a false survey suggests that he perceived some benefit from doing so. Otherwise, when questioned initially about the matter he would have confessed error and acted to correct the problem. Paragraphs 12 and 13 are rejected as contrary to the weight of the credible evidence except as to the statement that Mr. Evans was absent on the survey date. Paragraph 14 is rejected as recitation of testimony not accepted as an ultimate fact of this case. Paragraphs 15 through 18 are rejected as contrary to the weight of the evidence. Paragraphs 19 through 23 are accepted only to the extent that they suggest Respondent did not direct employees to after-the-fact fabricate records to justify the placement of the students; otherwise, rejected as recitation of testimony, irrelevant, argument or contrary to the weight of the credible evidence. Paragraphs 26 through 38 are rejected as irrelevant, contrary to the weight of credible evidence, repetitive, or argument. The first sentence of paragraph 39 is accepted; otherwise rejected as irrelevant or recitation of testimony. Paragraphs 42 through 69 are rejected as irrelevant, recitation of testimony not accepted as ultimate fact, contrary to the weight of credible evidence, argument, or unnecessary to the resolution of the issues of this case. Respondent had, prior to the incident complained of, enjoyed a good reputation in the school community and Rock Lake had had no major problems. Had Respondent acted differently in this instance, these proceedings would not have been required as his judgment would not have been made suspect. Paragraphs 72 and 73 are rejected as contrary to the weight of credible evidence. Paragraphs 75 through 79 are rejected as contrary to the weight of credible evidence or irrelevant. Paragraphs 81 through 90 are rejected as contrary to the weight of the credible evidence or argument. COPIES FURNISHED TO: Ned N. Julian, Jr. STENSTROM, McINTOSH, JULIAN, COLBERT, WHIGHAM & SIMMONS, P.A. Post Office Box 4848 Sanford, Florida 32772-4848 Joseph A. Rosier P.O. Box 95017 Lake Mary, Florida 32795 Dr. Paul Hagerty Superintendent of Schools Seminole County School Board 1211 Mellonville Avenue Sanford, Florida 32771
The Issue Whether just cause exists to terminate Respondent's employment as a teacher with the Palm Beach County School District for the reasons alleged in the Petition ("Complaint").
Findings Of Fact Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida. At all times pertinent to this case, Respondent was employed as a math teacher at Palm Springs Middle School, a public school in Palm Beach County, Florida. Stipulated Facts The Collective Bargaining Agreement between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association was in effect at all times pertinent to this proceeding. Pursuant to the parties' Joint Pre-Hearing Stipulation, the facts contained in paragraphs 5 through 10 below are admitted and required no proof at final hearing. On January 13, 2013, Respondent was arrested for the following criminal charges: (1) hit and run—leaving the scene of a crash involving damage to property; (2) resisting an officer without violence; (3) DUI-unlawful blood alcohol—refusal to submit to DUI test; (4) knowingly driving with a suspended license; and (5) bribery of a public servant (two counts). On July 22, 2013, Respondent was adjudicated guilty of the following charges: (1) driving under the influence causing injury to person or property in violation of section 316.193, Florida Statutes; (2) leaving the scene of a crash involving damage in violation of section 316.061, Florida Statutes; and (3) resisting an officer without violence in violation of section 843.02, Florida Statutes. Respondent's arrest resulted in media attention, with headlines including: (1) "Mary Maloney: Palm Springs teacher offers police sexual favor after DUI arrest, police say"; (2) "Police: Teacher offers sexual favors to officer to avoid DUI arrest. Mary Maloney accused of leaving scene of hit-and-run crash"; (3) "Mary Maloney, Fla. Teacher, offers sexual favor to cop after DUI arrest, police say"; and (4) "Mary Maloney, Teacher, Allegedly Offers Oral Sex to Police Officer After Hit- and-Run Charge." Respondent was reassigned from her position teaching students on February 25, 2013, and remained on this assignment out of the classroom until January 8, 2014, when the School Board voted to terminate her employment. On December 15, 2006, Respondent signed a Drug Free Workplace Policy acknowledgement stating that she had reviewed the policy and that compliance was mandatory. Respondent's discipline history revealed a prior violation of the Drug Free Workplace policy. She received a written reprimand on October 12, 2009, for violating School Board Policy 3.96 Drug and Alcohol Free Workplace when she was under the influence of a prohibited substance while off duty which resulted in a conviction under section 316.193, Florida Statutes- -driving under the influence. Non-Stipulated Facts As a result of her adjudication of guilt on July 22, 2013, Respondent was sentenced to 12 months of probation, 30 days in the Palm Beach County Jail, 60 days house arrest (during which she was required to wear a Scram monitor), 150 hours of community service, court costs and fines. Respondent testified that she was permitted to work while she was serving her 60-day period of house arrest. Anthony D'Orsi, a police officer for the City of Greenacres, provided unrefuted testimony that while he was transporting Respondent from the scene of the DUI arrest to the police station, Respondent advised him that she was a school teacher and implied that she wanted to perform oral sex on Officer D'Orsi and allow him to "play with her breasts" in exchange for her release. On January 13, 2014, Matthew Stockwell was employed as a police officer with the City of Greenacres. Officer Stockwell provided unrefuted testimony that, after he placed Respondent in his patrol car, she made numerous statements regarding that she was sorry for what had occurred and inquired as to how much it would cost for Officer Stockwell to release her. Respondent's arrest was reported on the Channel 5 News program under the headline of "Middle School Teacher Arrested On DUI, Hit And Run—Greenacres Police Say She Tried To Bribe Them With Sex." The coverage included her photograph, and among other statements, her name, age, and position at Palm Springs Middle School. Prior to the subject incident, Respondent received satisfactory evaluations as a teacher. Respondent was rated as either effective or highly effective for the 2011-2012 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Mary Maloney guilty of misconduct in office and immorality, and terminating her employment. DONE AND ENTERED this 30th day of March, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2015.
The Issue Whether the Seminole County School Board is entitled to dismiss Respondent for just cause for misconduct in office and/or gross insubordination.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner, the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of the school board. Respondent, Robert Brinkman, is employed by the School Board of Seminole County, Florida, as both a teacher at Sterling Park Elementary School and a custodian at another school in Seminole County and has a professional services contract for instructional personnel with the School Board of Seminole County. Respondent is 57 years old and has taught school for 23 years. No evidence was presented regarding his status as a custodian other than he was a custodian at the time he received his letter of suspension and that he was asked to "turn in his keys." He is not currently performing custodial services. On Wednesday, December 13, 2000, Respondent requested of his supervisor, Principal Deborah Wright, that he be given his paycheck on the following day, Thursday, December 14. The regular payday was Friday, December 15. Respondent advised Principal Wright that he had planned to go on vacation on the 15th and needed his paycheck a day early. Principal Wright refused to agree to give Respondent his paycheck early, advising him that no one else would be given the checks early and further advising him that he would have to reschedule his vacation. Respondent returned to the office he shared with Dawn Towle and, as characterized by both Respondent and Miss Towle, "he just lost it" and said "that black bitch won't give me my check." There is no evidence that this statement was overheard by any students; none were present. Whether the statement was directed to Miss Towle or not, she heard the statement and she responded, "excuse me?", to which Respondent replied "that black lady won't give me my check early." Miss Towle immediately reported the statement to Principal Wright. Principal Wright appropriately interpreted Respondent's statement as a racial remark made about her; the racial remark made her angry. Miss Towle suggests that on four occasions over a two school-year period, while she and Respondent shared their 10-square-foot office, she heard Respondent utter remarks that she considered "similar (racial) comments." The importance of these purported racial comments is discounted by the fact that they occurred in private conversations, some were not epithets or racial slurs, the only one concerning Principal Wright may not have been intended to be heard by anyone (Respondent "mumbled under his breath") and that Respondent denied having made any racial remarks other than the remark on December 13, 2000. Principal Wright called Respondent to her office, and in the presence of a witness, the assistant principal, told Respondent that "if you ever refer to me by any name other than Mrs. Wright, I will walk you out of the school on your toes." Under the circumstances, while the undersigned can only imagine the true import of the statement, it seems perfectly appropriate. Respondent immediately attempted to apologize; Principal Wright directed him to leave her office. He returned later that morning and again attempted to apologize and was again rebuffed. Principal Wright did not accept his apology because she did not believe his apology was genuine. Principal Wright acknowledged animosity toward Respondent based on previous instances with children; she was not aware of any prior racial remarks made by Respondent. Respondent mailed Principal Wright an apology one week after the incident indicating that "he was upset" and that his statement was "inappropriate and did not indicate how I feel about you." Principal Wright testified that Respondent had done nothing that was "racially harassing to her in the past," that his statement did not intimidate her or create a "hostile work environment," and that the statement (dealing with it) took time that she could have devoted to other job responsibilities. Respondent's statement, while clearly racially and sexually offensive, was isolated and not so severe as to create a hostile or abusive work environment. Principal Wright immediately reported the statement to John Reichert, who is charged by the School Board with the responsibility of investigating complaints of misconduct. Mr. Reichert arrived at Sterling Park Elementary School at 12:30 p.m., on the day of the incident. After interviewing Miss Towle and Principal Wright, he interviewed Respondent. Respondent acknowledged making the statement, said it was "a stupid thing to say" but that he was upset because he couldn't get his check, and that "he just lost it." The same day or the next, Respondent was suspended with pay which matured into a suspension without pay, effective January 17, 2001. The slur first heard or overheard by Miss Towle was indirectly published by Principal Wright to the assistant principal who became a witness to Principal Wright's admonishment of Respondent. While the assistant principal is not specifically aware of the text of Respondent's statement, she was made aware that Respondent had made a racial statement about Principal Wright. To the degree this remark has been further published, it is a result of appropriate investigative and administrative action taken by the School Board. There is no evidence that there is a general awareness, in the school system or the community, of Respondent's statement. Other than the testimony of Miss Towle, there is no suggestion that the Respondent made other sexual/racial statements. He has no record of sexual/racial misconduct. Respondent maintains that his remark was not racially motivated, that he was just very upset. He has enjoyed working for Principal Wright for five years. At the final hearing, Respondent again acknowledged that what he said was very inappropriate and that he is very sorry for what he said. There is no evidence that Respondent's remark actually impaired his effectiveness in the school system--which is a necessary factual component of the offense of misconduct in office. The only evidence received on the issue of impairment of Respondent's effectiveness in the school system is John Reichert's testimony that he had no knowledge that Respondent's effectiveness would be impaired anywhere beyond Sterling Park Elementary School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Seminole County School Board enter a final order dismissing the charges against Respondent and returning him to full duty, effective January 17, 2001, with all back pay and benefits. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. JEFFREY B. CLARK 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 20th day of April, 2001. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Sandra J. Pomerantz, Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Dr. Paul J. Hagerty Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773
The Issue Whether the Respondent should be disciplined as alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, Respondent, Willie Vance, was employed as a lead custodian at Ponce de Leon Middle School in Dade County, Florida. Over the course of several years, starting as early as 1986, Respondent was counseled regarding the personnel rules and employment requirements for continued employment with the School Board. More specifically, Respondent was advised that absenteeism presented a hardship in the workplace and that he would not be permitted to adversely affect the normal operation of the school. In this regard, Respondent was referred to the Petitioner's Employee Assistance Program on at least two occasions. In May 1990, Respondent was cited for excessive absenteeism and reminded of the collective bargaining agreement provisions which outline when absences may be grounds for termination. In the years that followed, Respondent continued to have difficulty complying with the regulations regarding absences. He was cited for failing to adhere to the procedures for reporting absences. As lead custodian Respondent was responsible for opening the school at the beginning of each school day. On several occasions, school staff were left to wait for Respondent to arrive to open the school or turn off security alarm systems. Respondent's attendance problem increased and in 1995 he received verbal and written directives regarding his attendance and work performance. By January 1996, Respondent's conduct had not improved. Instead, his continued failure to abide by the directives regarding attendance and work performance led to an incident wherein Respondent used profane and vulgar language and threatened a member of the school staff with bodily harm. These acts occurred in the presence of students and staff members. On February 9, 1996, Respondent was directed to refrain from threatening and/or verbally abusing other staff members. More important, Respondent was advised that continued behavior would result in further disciplinary action. On February 29, 1996, Respondent was absent from work, failed to timely alert school staff that he would not be at work, and, as a result, the school did not open on time. On March 18, 1996, Respondent was absent from work without prior authorization and did not report his absence to school administrators. On March 19, 1996, Respondent failed to sign out on the payroll sheet as all employees had been directed. On March 20, 1996, Respondent failed to report to work without prior authorization from the school principal. On March 26, 1996, Respondent was issued a written warning that his continued failure to perform his assigned duties and repeated indifference to the directives regarding attendance would result in further disciplinary measures. On April 2, 1996, Respondent was advised that continued failure to follow directives would be considered insubordination. On April 11, 1996, Respondent failed to report for work, failed to give notice of his absence, and failed to open the school timely. Since no one knew Respondent would be absent, no administrator could cover for Respondent. As a result, on this date the school mail was not delivered (including employees' paychecks). On April 24, 1996, Respondent was notified that if his performance did not improve by the end of the 1995-96 school year, that a recommendation for disciplinary action would be made to the School Board by the principal. In May 1996, the principal was notified that Respondent had failed to follow through with the Employee Assistance Program's recommendations. Subsequently, Respondent's conduct deteriorated. On May 31, 1996, he made a threat to another staff member; on June 4, 1996, he had a verbal altercation with another custodian; on June 7, 1996, he was absent without prior approval; on July 9, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time; on July 17, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time; on July 22, 1996, he was absent from work without prior authorization; and on July 23, 1996, he was absent and failed to notify school personnel so that, once again, the school failed to open on time. On July 24, 1996, Respondent was issued a written warning again advising him that his continued failure to comply with procedures could not be tolerated. He was advised that his performance was unacceptable, that it was having a detrimental effect on his co-workers, and that continued failure would be considered neglect of duty and gross insubordination. On September 11, 1996, in the presence of students, Respondent was verbally abusive and threatening to an assistant principal. On September 25, 1996, Respondent had another altercation with a co-worker. Respondent threatened the employee by holding a gasoline container and suggesting he would pour gasoline over the worker and light a match. Despite additional warnings and conferences with Respondent, Respondent failed to abide by the directives from school administrators. The directives were reasonable in nature and related to the offensive and inappropriate behavior exhibited by Respondent. Nevertheless, Respondent did not improve. From October 1996 through January 6, 1997, Respondent continued to exhibit an indifference to the directives from school personnel. He continued to fail to report to work and, on January 6, 1997, did not report his absence. On February 5, 1997, the School Board took action to suspend Respondent from his employment with the school district and to initiate dismissal proceedings against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a Final Order sustaining the suspension without pay previously entered, and dismissing Respondent from his employment with the School Board. DONE AND ENTERED this 31st day of March, 1998, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1998. COPIES FURNISHED: Dr. Roger C. Cuevas Superintendent Dade County Public Schools 1450 Northeast Second Avenue Suite 403 Miami, Florida 33132 Frank T. Brogan Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Luis M. Garcia, Esquire School Board of Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Willie Vance, pro se 3682 Grand Avenue, No. 3 Miami, Florida 33133
The Issue (1) Whether facts and circumstances demonstrate the existence, on August 20, 2019, of an immediate and serious danger to the health, safety, or welfare of the students of Championship Academy of Distinction at Davie, Inc.-5422 d/b/a "Championship Academy" ("Championship") justifying the immediate termination of its charter by the Broward County School Board ("School Board") pursuant to section 1002.33(8)(c); and (2) whether the School Board formulated one or more agency statements that constitute unadopted rules, in violation of section 120.54(1)(a), and applied one or more of those unadopted rules as the basis for its agency action immediately terminating Championship's charter.1 1 Championship's rule challenge petition, as filed, also challenged an adopted School Board rule under section 120.56(3). This challenge was abandoned at the beginning of the final hearing.
Findings Of Fact The Parties Championship is a Florida not-for-profit corporation that holds the charter for numerous charter schools throughout Florida, including in Broward County, Florida. Championship was the holder of the charter for Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was immediately terminated by the School Board on August 20, 2019.4 Pursuant to Article IX, section 4 of the Florida Constitution, the School Board is the political subdivision that operates, controls, and supervises all district public schools in Broward County, Florida.5 3 CS for CS Senate Bill 7030 (2019) substantially amended section 1006.12, Florida Statutes, regarding safe-school officers. This legislation was published as chapter 2019-22, Laws of Florida (2019) and has been codified in numerous Florida Statutes, including section 1006.12. 4 For purposes of this Final Order, including the stipulated facts, all references to "Championship" are to the Championship Academy of Distinction at Davie, Inc., the charter school for which the charter was terminated on August 20, 2019. 5 The School Board is an educational unit, as that term is defined in section 120.52(6), and, therefore is an "agency" for purposes of chapter 120. Pursuant to section 1002.33(8), Florida Statutes, the charter termination proceeding is conducted pursuant to sections 120.569 and In Florida, charter schools are nonsectarian public schools that operate pursuant to a charter contract with a public sponsor. § 1002.33(1), Fla. Stat. In this case, the School Board is the sponsor for Championship. Stipulated Facts At a regularly scheduled meeting, the School Board approved a renewal Charter School Agreement (the "charter"), dated April 5, 2016, with Championship. The charter became effective on July 1, 2016, for a term of five years. At a regularly scheduled meeting on August 20, 2019, the School Board voted to immediately terminate Championship's6 charter pursuant to section 1002.33(8)(c). As the basis for its action, the School Board concluded that the particular facts and circumstances indicated that an immediate and serious danger to the health, safety, or welfare of Championship's students existed on that date, due to Championship's failure to comply with and implement the requirements of section 1006.12, by failing to arrange for the assignment of one or more safe-school officers for the protection and safety of students, school personnel, and property, without interruption, during all school hours of every school day, and for repeatedly allowing a licensed security guard other than a safe-school officer to possess a firearm on Championship's campus in violation of section 790.115(2)(a), Florida Statutes. The School Board's notice of termination of the charter was delivered to Championship on August 22, 2019. The first day of the 2019-2020 school year for the students at Championship was Wednesday, August 14, 2019. Students attended classes at Championship on Wednesday, August 14, through and including Friday, 120.57(1). Additionally, pursuant to section 1001.41(2), Florida Statutes, the School Board is required to adopt its policies pursuant to the rulemaking procedure in section 120.54. 6 In the Joint Prehearing Stipulation, the parties interchangeably refer to "Championship" and the "Charter School." For consistency, the stipulated facts in this Final Order are modified to refer to "Championship." August 16, 2019, and on Monday, August 19, through Thursday, August 22, 2019. Pursuant to section 1022.33(8)(c), Florida Statutes, the School Board assumed operation of Championship after it immediately terminated Championship's charter. On August 14, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 15, 2019, Championship had an armed security guard, rather than a safe-school officer pursuant to one of the four options authorized and required by section 1006.12, present on its campus. On August 14, 2019, Detra Adams observed a person sitting behind the front desk at the Charter School. Championship's principal, Todd Dupell, told her that that person was an armed guard. On August 15, 2019, starting at approximately 2:37 p.m., a police officer from the Davie Police Department was present on Championship's campus. A police officer from the Davie Police Department was present on Championship's campus during all school hours on Friday, August 16, 2019; during all school hours on Monday, August 19, 2019; and during all school hours on Tuesday, August 20, 2019. On August 19, 2019, Broward County Schools Superintendent Robert Runcie, Leslie Brown, and School Board Deputy General Counsel Robert Vignola received a copy of an email dated August 16, 2019, from Davie Police Department Captain Christopher Chastain to Todd Dupell, stating, in part: We will meet with the Town Administrator Monday morning to finalize everything. In the interim[,] there will be an officer at your location on school days. We hope to have an approved agreement ready for signing by Monday afternoon which will provide you with what is being requested by the county. Runcie stated the following during the School Board meeting on August 20, 2019: "I know, I think it was late on Thursday afternoon, and certainly on Friday when we checked, there was a full-time officer there from the City of Davie." Brian Katz, the School Board's Chief Safety, Security, and Emergency Preparedness Officer, stated the following regarding whether the Charter School was in compliance with section 1006.12, during the School Board meeting on August 20, 2019: "as of today [August 20, 2019], they are." School Board member Nora Rupert stated the following regarding a written communication she received from the Mayor of Davie, Judy Paul, during the School Board meeting on August 20, 2019: The Mayor of Davie, Judy Paul, says there presently are Davie officers in the three Davie charter schools, and the executed agreement will be forwarded, specifically, Championship, excuse me, when completed today. We take care of our own, ["]we["] meaning their city. They've always been a very good, good partner with us. I asked if I could say this publicly, and she said yes. This is for the public record. I also forwarded it to the attorney, as well as the Superintendent the minute I received it, and just so my colleagues could have that information, I had to say it here. Vignola stated the following during the School Board meeting on August 20, 2019: If there's an officer there [at Championship] now and . . . if there is a representation from appropriate officials in the City [Town of Davie] that they see themselves as having a binding obligation to provide safe-school officer coverage with continuity, that goes to your threshold question of whether immediate termination is appropriate. The following exchange occurred between School Board member Laurie Rich Levinson and Vignola during the School Board meeting on August 20, 2019: Levinson: "So, Mr. Vignola, I know it's a difficult question, but legally, where are we? As of today, we are going to have an agreement with the Town of Davie that this school is covered, so as of today, we're not able to terminate a contract." Vignola: "If we get that representation from the city, I think that I would counsel voting against immediate termination." School Board member Donna Korn stated the following during the meeting of the School Board on August 20, 2019: "Do I believe that our decision will be overturned? Unfortunately, to the extent we have a very mixed message, I do." Vignola stated the following at the meeting of the School Board on August 20, 2019: Right now, today, they have, as I've been—it's been reported to me, they have a safe[-]school officer on campus today that would be compliant. As for what they have down the road, the law is not very clear as to an obligation. There's nothing in here that says have a contract in place. At an emergency meeting held on August 27, 2019, the School Board voted against immediately terminating its charter school agreement with The National Ben Gamla Charter School Foundation, Inc. ("Ben Gamla Charter School"), pursuant to section 1002.33(8)(c), concluding that the particular facts and circumstances did not indicate that an immediate and serious threat to the health, safety, or welfare of that charter school's students existed on August 27, 2019. The School Board was aware, at its August 27, 2019, meeting that the security guard at the Ben Gamla Charter School campus was not a certified guardian pursuant to section 1006.12. School Board member Dr. Rosalind Osgood stated the following during the August 27, 2019, meeting of the School Board regarding the Ben Gamla Charter School: It was a problem because there were not enough law enforcement officers in the whole state even available to meet the demands of the legislature, so we had to be very creative in the way that we made decisions to keep our kids in the traditional public schools safe[,] with requiring that they have military or law enforcement background and training, which again, we keep hearing limited the pool, but it's the . . . safest way that we can address it. Runcie stated the following during the meeting of the School Board on August 27, 2019, regarding the Ben Gamla Charter School: "[s]o I think they're [Ben Gamla Charter School] working to try to get to a point where they have a sustainable plan, but if they currently have a plan, no matter how short-term it is, and they're able to have a safe[-]school officer on campus, they're technically in compliance." Chief of the Plantation Police Department, W. Howard Harrison, stated during the meeting of the School Board on August 27, 2019, that the Plantation Police Department did not provide any officers for the campus of Ben Gamla Charter School on August 14 through 16, and August 26, 2019. A Plantation Police Department Officer was provided to Ben Gamla Charter School for half a day on August 19, 2019, and an officer from the Broward County Sheriff's Office provided coverage for August 27, 2019. The School Board did not designate, assign, or provide any safe-school officers at Championship for the 2019-2020 school year. Championship timely filed a Petition for Formal Administrative Hearings with the School Board, requesting an administrative hearing on the School Board's immediate termination of its charter. The School Board referred Championship's request for hearing to DOAH on September 11, 2019. Findings of Fact Based on Evidence at Final Hearing Safe-School Officer Statute In response to the tragic school shooting at Marjory Stoneman Douglas High School that occurred on February 14, 2018, the Florida Legislature enacted the Marjorie Stoneman Douglas High School Public Safety Act, a portion of which is codified at section 1006.12, the statute titled "Safe-school officers at each public school." Certain provisions of section 1006.12 have given rise to the matters in dispute in these consolidated proceedings. School Board Communications and Actions Regarding Charter School Compliance with Section 1006.12 On or about March 8, 2019, the Florida Department of Education ("DOE") contacted the School Board, requesting information regarding the status of compliance, by all public schools in the Broward County Public Schools District ("District"), including charter schools, with the statutory requirement in section 1006.12 for a safe-school officer to be present at each school. The request set a March 22, 2019, deadline for each school in the District, including charter schools, to provide that information to DOE. The School Board contacted all charter schools in the District, requesting that they provide the information requested by DOE by March 22, 2019. Championship did not provide the requested information by that date. The amendments to section 1006.12 enacted as part of SB 7030 became law on May 8, 2019. On May 15, 2019, Katz conducted an informational meeting with charter school personnel to inform them of the requirements of newly- amended section 1006.12, and to provide instructions to upload compliance documentation into the Charter.Tools application. Dupell attended the meeting. On June 28, 2019, Commissioner of Education Richard Corcoran sent a letter (the "Corcoran Letter") to the representatives of charter schools regarding compliance with newly-amended section 1006.12. The letter provided information regarding the options for meeting the requirement to have at least one safe-school officer present on campus while school is in session. The Corcoran Letter particularly addressed the expanded school guardian option codified at section 1006.12(3), and the new school security guard option codified at section 1006.12(4). The letter stated, in pertinent part: [E]very public elementary, middle, and high school in Florida, including all Florida charter schools, must have a Safe-School Officer (SSO) physically present on each campus while school is in session. . . . All charter schools without current [safe-school officer] coverage have until August 1 to come into compliance for the 2019-2020 school year For those charter schools that choose to treat our requests for information as optional, our only option going forward will be to use the full extent of the law to ensure compliance. On July 9, 2019, Katz and Leslie Brown, the School Board's Chief Portfolio Officer, issued a memorandum directed to the charter schools in the District. The memorandum stated: "[t]he statute requires each charter school to implement one of the safe-school officer options." The memorandum listed the options and explained that the first three options, with some legislative revisions, had been available to charter schools in the 2018-2019 school year. The memorandum further stated: [t]he School Board has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12, Florida Statutes." Citing the Corcoran Letter, the memorandum stated, in boldface type: If one of the Safe[-]School Officer options is not confirmed by your location by August 1st,[2019,]such facts and circumstances will be considered by your charter school sponsor to present an immediate and serious danger to the health, safety, or welfare of your charter school's students. Please be advised that, under those circumstances, the school district will request the School Board of Broward County, Florida, to "use the full extent of the law[,]" as urged by Commissioner Corcoran and immediately terminate your charter agreement pursuant to [s]ection 1002.33(8)(c), Florida Statutes. July 9, 2019, memorandum, Exhibit JE-4 (emphasis added). From this memorandum, it is apparent that the School Board interpreted the phrase "use the full extent of the law," as referenced in the Corcoran Letter, to mean immediately terminating a noncompliant charter school's charter. In so stating, the School Board was not merely following guidance set forth in the Corcoran Letter—which did not mention immediate termination of a charter as a sanction for noncompliance with section 1006.12—but, instead, was articulating its own sanction, which it would impose for noncompliance with section 1006.12.7 The memorandum further stated: "[p]lease upload into Charter.Tools, under the benchmark entitled Senate Bill 7030, the attached form and pertinent documentation that confirms that your implemented Safe[-]School Officer option is in compliance with [s]ection 1006.12, Florida Statutes, for the 2019-2020 school year. This documentation is due by August 1, 2019." On July 31, 2019, the School Board sent a follow-up email to the principals of the charter schools in the District, reminding them of the August 1, 2019, deadline. 7 To this point, in response to an email from Broward County Public Schools Superintendent Robert Runcie dated August 15, 2019, Corcoran counseled against immediate charter termination to sanction noncompliant charter schools, recommending instead that the District take immediate steps to provide safe-school officer coverage at a noncompliant charter school, followed by steps to ensure that the school maintained coverage and implemented a long term solution. The School Board conducted another meeting with charter school principals on August 1, 2019, at which Katz highlighted the four safe-school officer options available under section 1006.12, and reminded the charter school principals of the School Board's position that charter schools were solely responsible for establishing and assigning one or more safe-school officers for their campuses. Championship did not meet the August 1, 2019, deadline to upload the safe-school officer documentation into Charter.Tools. Katz testified at the final hearing that the School Board did not establish or assign any safe-school officers at any charter schools in the District, including Championship, in the 2019-2020 school year. Actions Taken by Championship Regarding Safe-School Officer Requirement in 2019-2020 School Year On Friday, August 2, 2019, Linda Williamson, office manager for Championship, emailed Lieutenant Patricia Ravine of the Davie Police Department regarding obtaining a school guardian while Championship's security guard was in training to become certified as a School Guardian. Ravine told her that the Broward County Sheriff's Office ("BSO") was in the process of developing the guardian program, and that the Davie Police Department had a contract with the School Board for all 13 of its school resource officers to be assigned to the 12 traditional public schools in Davie. Ravine suggested that Championship contact a security agency, and she also suggested, as an alternative to a temporary guardian, that Championship secure the services of a Davie Police Department private duty detail officer. On or about Friday, August 9, 2019, Championship submitted a Private Duty Detail Application ("Application") to the Davie Police Department, requesting private duty detail officer coverage for Championship from 7:30 a.m. to 3:30 p.m. for each school day, beginning on August 14, 2019, and ending on September 28, 2019. Private duty detail coverage consists of voluntary coverage by off-duty police officers whose presence is not guaranteed by the police department. To that point, the Application states, in pertinent part: "[e]very reasonable effort will be made to fill the detail request, but there is no guarantee that it will be filled. Members of the Davie Police Department, who are authorized to work Private Duty Detail, do so voluntarily during their off duty hours." The first day of the 2019-2020 school year for District schools, including Championship, was August 14, 2019. On August 14, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, and Championship did not have any other persons qualified under any of the safe-school officer options in section 1006.12 present on its campus that day. On August 14, 2019, Championship did have present on its campus an armed security guard, Steven Carbone, who Championship had hired to provide school safety services on its campus. Although Carbone had not yet completed the school guardian training program, he met the other safe-school officer requirements set forth in section 1006.23, including having completed a psychological evaluation which indicated that he was suitable for the position, and holding Class D and Class G licenses under chapter 493, Florida Statutes. Additionally, Carbone was trained regarding domestic and foreign terrorism, explosives, improvised explosive devise recognition, and identification of hazardous materials. Detra Adams, Curriculum Supervisor of Secondary Literacy for the District, visited Championship's campus on August 14, 2019. She did not view a safe-school officer who met the requirements of section 1006.12 on Championship's campus that day. However, she did observe a person at the front desk wearing a security uniform and bearing a firearm. That person ultimately was identified as Carbone. Adams met with Dupell, who told her that Championship had procured the service of an armed security guard (Carbone) who was present on campus that day. Dupell acknowledged that Championship had not submitted the required documentation to the District to have an armed security guard on campus. He told Adams that Carbone was registered for a school guardian training program8 and that once he completed the training, Championship would submit the certification documents to the District. Dupell also told Adams that Championship had arranged for a Davie private duty detail police officer to be present at the school on some, but not all, school days. On August 15, 2019, the Davie Police Department did not send a private duty detail police officer to provide safe-school officer services to Championship, but did send an on-duty police officer who arrived shortly before the end of the school day. Donte´ Fulton-Collins, Director of the Charter Schools Management Support Department for the District, visited Championship's campus on August 15, 2019, and did not observe a safe-school officer meeting the requirements of section 1006.12 on campus that day. However, she did observe an armed security guard on that date. That person ultimately was identified as Carbone. Katz, along with Damien Kelly of the DOE Safe Schools Office, visited Championship's campus on August 15, 2019, to discuss with Dupell the need for Championship to secure the services of a safe-school officer who met the requirements of section 1006.12. At that meeting, Dupell provided documentation to Katz showing that Championship had filed the Application with the Davie Police Department, 8 On July 31, 2019, Championship entered into an agreement with the BSO to provide Carbone training to serve as a safe-school officer pursuant to the Aaron Feis School Guardian option under section 1006.12(3). The training course was only offered every three months, so when Carbone was hired to fill the safe-school officer position at Championship, the soonest he could obtain training by BSO was early September 2019, after the 2019-2020 school year had begun. requesting to have private duty detail officer coverage until Carbone could complete the training to satisfy the requirements for certification as a school guardian under section 1006.12(3). Dupell also provided Katz a list of dates for which Davie Police Department had signed up to provide private duty detail coverage at Championship between August 14 and September 28, 2019. Katz observed that for many of the shifts on school days during that period, no officers had signed up to provide coverage at Championship. In sum, for the first two days of the 2019-2020 school year, Championship was not in compliance with section 1006.12 because it did not have present on its campus an individual who met the statutory requirements to serve as a safe-school officer. Championship does not dispute that it was not in compliance with section 1006.12 on those days. For the first two days of the 2019-2020 school year, Championship did have an armed security guard, Carbone, who had been hired by Championship specifically to provide school safety services to protect the health, safety, and welfare of its students. As discussed above, although Carbone had not yet been trained as a school guardian, he met the other requirements to be a school guardian. Pursuant to an electronic mail exchange between Championship and Ravine on the afternoon of August 15, 2019, the Davie Police Department guaranteed police officer coverage for Championship's campus, for the full school day, on all the days requested in the Application for which no private duty detail officer had volunteered. Thus, by the afternoon of August 15, 2019, Championship had secured guaranteed police officer coverage from the Davie Police Department—albeit not pursuant to a fully-executed contract. Pursuant to this informal arrangement, a police officer from the Davie Police Department was present and provided safe-school officer services on Championship's campus for the entire school day on August 16 and 19 through 22, 2019. On Wednesday, August 22, 2019, Championship and the Town of Davie, Florida, executed a Safe School Officer Agreement ("SSO Agreement") for a term commencing on August 14, 2019, and ending no more than 90 days later. Article 2 of the SSO Agreement states, in pertinent part, T[own] shall assign a certified police officer to serve as a [Safe School Officer ("SSO")] at the charter school for a period not to exceed the school year [(sic)] to allow C[harter] to otherwise become compliant with the [c]hapter 2019-22, Laws of Florida (2019) . . . . The certified police officer assigned to the school will be working in an overtime capacity. There is no guarantee that the same officer will work at the school on a daily basis. The parties agree that this does not include any after[-]hours activities, sports programs, aftercare, etc. Assignment of SSOs. The Town may change the law enforcement officer assigned to participate as a[n] SSO at any time during the Agreement. Unless precluded by emergency circumstances, the T[own] shall at all times maintain an SSO on duty during those regular school hours. "Regular school hours" shall be defined as the respective [p]articipating school's posted bell schedule. Wherever possible, the T[own] shall assign a replacement SSO during the time that the assigned SSO is absent when students are required to be in attendance during regular school hours. Pursuant to the SSO Agreement, the Town of Davie guaranteed police officer coverage for Championship for every school day during regular school hours, commencing on August 14, 2019, and ending no more than 90 days later. This coverage was to be provided by private duty detail officers when available, and if no private duty detail officers were available, safe-school officer coverage would be provided by an on-duty police officer. Because the SSO Agreement was not fully executed until August 22, 2019, and because no private duty detail officers had volunteered to provide safe-school officer coverage at Championship on August 14 and 15, 2019, the Davie Police Department did not provide coverage on those dates. However, as found above, pursuant to the informal arrangement for private duty detail coverage that Championship had made with the Davie Police Department on August 15, 2019, a Davie police officer was physically present and provided safe-school officer services on Championship's campus on August 16 and 19 through 22, 2019. Thereafter, the Davie Police Department provided safe-school officer services to Championship under the SSO Agreement for the rest of the 2019- 2020 school year, until all District schools were closed in March 2020 due to the COVID-19 pandemic. Other School Safety Measures Taken by Championship Cynthia Dotson, Chief Executive Officer of the management company who provides services to small charter schools, including Championship, testified regarding the measures that Championship has implemented on its campus to protect the health, safety, and welfare of its students and staff. The Championship campus is located in a fenced facility within a small business park in a cul-de-sac. The school has one point of ingress and egress for the public, and additional means of ingress and egress for the provision of fire, life, and safety support services. Championship screens persons entering the campus through a software application used to determine whether that person has a criminal record. It also utilizes a video camera system to provide surveillance of the interior and exterior of the campus, an audio communication system consisting of an intercom system and walkie-talkies, and a software application through which faculty members can report suspicious activity to the appropriate authorities. Additionally, Championship has hired a retired SWAT team to train all of its employees to respond to active assailant situations on campus in order to mitigate any threat and prevent injury and loss of life. To this end, Championship conducts monthly code red drills in both the summer months and the school year. Before the 2017-2018 school year, Championship hired a school security guard, Yoan Herrera, to provide school safety services to its campus. Herrera became certified by the BSO on November 15, 2018, to serve as an Aaron Feis Guardian on Championship's campus.9 He provided those services to Championship until approximately mid-March 2019. After Herrera left his position, Championship retained the temporary services of the King Security Agency ("King") to provide school security services while it searched for a replacement school security employee. After an exhaustive search that yielded very few qualified applicants, Championship hired Carbone to fill the school security guard vacancy. Carbone had been an employee of King and had provided school security services to Championship during the last few months of the 2018-2019 school year. As noted above, Carbone's psychological evaluation indicated that he was suited for the position. Additionally, he had training regarding domestic and foreign terrorism, explosives, improvised explosive device recognition, and identification of hazardous materials, and he also held Class D and Class G licenses. After Championship hired Carbone, he was immediately enrolled in the Aaron Feis School Guardian certification program offered by the BSO. However, due to the high demand for such training and limited program 9 Notably, even though Herrera was present on Championship's campus while carrying a firearm for the entire 2017-2018 school year and a portion of the 2018-2019 school year, and for part of that time, provided school security services in a capacity other than as a safe- school officer pursuant to section 1006.12, no evidence was presented at the final hearing showing that the School Board considered Herrera's presence on Championship's campus as constituting a violation of section 790.115(2), warranting immediate termination of Championship's charter. offerings, Carbone was unable to begin the training before early September 2019. Thus, assuming he successfully completed the program, he would not have been certified as a school guardian pursuant to section 1006.12(3) until October 2019. Ultimately, Carbone did not successfully complete the training program. Additionally, on August 19, 2019, Championship hired Andre Chambers to serve as a safe-school officer at its campus. At the time Chambers was hired, he already was certified as an Aaron Feis School Guardian pursuant to section 1006.12(3). He began providing safe-school officer services on Championship's campus in September 2019, and did so until all District schools, including Championship, were closed in March 2020 due to the COVID-19 pandemic. School Board's Immediate Termination of Championship's Charter As a result of Championship's failure to have a safe-school officer meeting the requirements of section 1006.12 on its campus on August 14 and 15, 2019, School Board personnel prepared an agenda item recommending immediate termination of the Charter for consideration at the School Board's next regular meeting, scheduled for August 20, 2019. At the final hearing, Brown and Katz testified that the School Board determined that Championship's failure to have, on campus, a safe-school officer who met the requirements of section 1006.12, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students, which commenced on August 14, 2019, and continued through August 20, 2019, when the School Board immediately terminated Championship's charter. Brown acknowledged that the School Board was aware that as of August 16, 2019, Championship had a police officer from the Davie Police Department physically present on its campus. She testified that this did not change the School Board's position that an immediate and serious danger to the health, safety, or welfare to Championship's students existed. As she put it: [t]he services were piecemeal, there was nothing that we could depend on, nothing had been established and nothing had been assigned. . . . There was no evidence that [having a Davie police officer on campus] was going to be the case as each—each minute or hour or day that was going to continue. Katz and Brown also testified that the School Board interpreted section 1006.12 as requiring a charter school to have in place a fully-executed contract for a safe-school officer in order to meet the statute's requirement that a safe-school officer be "established and assigned" to the school. To this point, Katz testified that having a Davie Police Department police officer present on campus would not, by itself, meet the safe-school officer requirement, because an executed contract "establishing" the presence of the officer also is required by the statute. He stated: "I believe both things are necessary, the agreement and presence. A fully[-]executed contract and presence [J]ust to be clear, a contract that states that there will be coverage, not a contract that says there may be coverage."10 Katz and Brown also testified that the School Board interprets section 1006.12 as placing the responsibility solely on the charter school to secure a safe-school officer for its campus. To this point, Katz testified that the School Board has "always believed that they [charter schools] were responsible for . . . assigning or establishing a safe school officer for every one of their schools." 10 In the stipulated facts set forth above, Katz stated, in response to a question from a School Board member at the August 20, 2019, meeting, that if Championship had a law enforcement officer present on its campus on that day, it was in compliance with section 1006.12. At the final hearing, Katz testified at the final hearing that this statement assumed the existence of a fully-executed contract on that date. As discussed above, the evidence establishes that the SSO Agreement was not fully executed until August 22, 2019. Brown testified that the School Board views Florida law as prohibiting the District from assigning a safe-school officer to a charter school. To that point, she testified that if a charter school wished to secure the services of a school resource officer under section 1006.12(1) to meet the safe-school officer requirement, the charter school would have to directly contract with the law enforcement agency to do so.11 Further to this point, Katz testified that the School Board did not have the authority to assign a law enforcement officer whose services are contracted by the District to provide safe-school officer coverage on a charter school's campus.12 Both Brown and Katz testified that the School Board met the requirement in section 1006.12 to "collaborate with charter school governing boards to facilitate charter school access to all safe-school officer options available" by providing information, presentations, and training to charter schools regarding the statute's safe-school officer requirements and available options for meeting those requirements. Katz acknowledged at the final hearing that Championship having an armed security guard who was not a safe-school officer present on its campus to provide school security services did not pose an immediate and serious danger to the health, safety, or welfare of the students at Championship. Fulton-Collins testified that she assisted in preparing the School Board agenda item recommending the immediate termination of Championship's charter because, as she put it: 11 Section 1006.12(1), establishing the school resource officer option, states: "A school district may establish school resource officer programs through a cooperative agreement with law enforcement agencies." § 1006.12(1), Fla. Stat. (emphasis added). Notably absent from this provision is language authorizing charter schools to do so. 12 Section 1002.33(12)(a) states: "A charter school shall select its own employees. A charter school may contract with its sponsor for the services of personnel employed by the sponsor." § 1002.33(12)(a)(emphasis added). This provision appears to authorize a school board to contract with a charter school to establish or assign a safe-school officer at the charter school, pursuant to a partnership between the school board and a law enforcement agency or security agency as provided in the first sentence of section 1006.12. all charter schools must be in compliance with any requirements that the Legislature has deemed to be necessary to protect the health, safety, and welfare of the students. The Legislature specifically found in section 1006.12 . . . that the establishment or assignment of a safe school officer on a charter school campus is necessary for the protection of school personnel, property, students, and visitors. And by failing to do so, failing to establish and assign a safe school officer on the campus, Championship created an immediate and serious danger to the health, safety, and welfare of its students. Fulton-Collins testimony, T. Vol. I, p. 192. Fulton-Collins acknowledged that section 1006.12 does not expressly state that charter schools are responsible for establishing and assigning their own safe-school officers.13 However, she maintained that charter schools are solely responsible for establishing and assigning safe-school officers for their own campus, and that the School Board's duty is "not impeding [them] on any opportunity that they have to secure a safe-school officer." Broward County Public Schools Superintendent Robert Runcie confirmed that the School Board interprets section 1006.12 as placing the sole responsibility on charter schools to secure their own safe-school officers. To this point, Runcie testified: " [j]ust as we [the District] go and secure [safe- school officers], by any means necessary, to have them on our campuses, [charter schools] are also required to go and use whatever means they can to secure them." Runcie also confirmed the School Board's position, articulated by Katz and Brown, that for charter schools to be in compliance with section 1006.12, a person meeting the requirements of one of the safe-school officer options 13 Notably, during the 2019 Legislative Session, the Legislature expressly rejected an amendment to SB 7030 that would have amended the first sentence of section 1006.12 to also require "charter schools, as applicable" to establish and assign one or more safe-school officers at its school facility. must be physically present on the school campus for the entire school day, and a fully-executed contract must exist, guaranteeing the presence of the safe-school officer on the campus each school day, for the full term of the contract.14 Runcie testified that the School Board interprets the terms "establish and assign" to require that both of these conditions be met for the charter school to be in compliance with section 1006.12. He acknowledged that section 1006.12 does not expressly state that a fully-executed contract is required for compliance with the statute.15 To this point, he testified: [t]he statute, itself, may not specify a contract. It says what you are required to do. And the reason why it doesn't specify a contract is that there are several means to do it. There are some school districts, like Miami, I believe Palm Beach may be similar, but there's a handful of them where they actually have their own police force. So they're not going to have a contract in order to meet that[.] So the legislation is not going to be that specific because there's varying ability in how school districts and charter schools go about securing safe- school officers. So it wouldn't have that . . . degree of specificity. Runcie testimony T., Vol. II, pp. 44-45. Further to this point, Runcie testified: It [(the statute)] doesn't specifically require that, but the—so, again, the statute speaks to multiple 14 Runcie testified that in the School Board's view, section 1006.12 does not require an executed long term contract, such as a school-year-long contract, securing safe-school officer services; rather, the School Board interprets the statute as requiring a fully-executed contract that guarantees continuous presence of a safe-school officer on campus for the duration of the contract's term, whatever that term is. 15 See paragraph 243, below. To the extent a statute does not specify the precise means by which it is to be implemented, rulemaking may be necessary in order for an agency to implement the statute. See § 120.52(16), Fla. Stat. (defining "rule" as a statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits information not specifically required by statute or by an existing rule). avenues, multiple ways of securing a safe-school officer. A couple of those don't require a contract. Again, if you have your own police force or you're using an armed guardian. So, for example, we actually have some schools that we have put in our detectives from our school investigative unit when we needed to. So we have 15, 20 police officers, if you will. So some districts, their whole entire system, they have their own police department. Or you can hire an individual, put him through the guardian program, have them become certified. Outside of doing those two things you would actually have to have a contract or some types of established agreement, an arrangement to be able to fulfill that. Runcie testimony, T. Vol. II, pp. 58-59. The School Board terminated Championship's charter on August 20, 2019, because Championship did not have a safe-school officer present on its campus for the first two days of the 2019-2020 school year, and because as of August 20, 2019, Championship did not have a fully-executed contract with the Town of Davie guaranteeing the presence of a police officer to serve as a safe-school officer on Championship's campus; thus, the School Board considered these circumstances to constitute an immediate and serious danger to the health, safety, or welfare of the students at Championship, warranting immediate termination of the charter pursuant to section 1002.33(8)(c). Safety-Related Circumstances on Championship's Campus in the 2019- 2020 School Year Three parents of students who attended Championship in the 2019-2020 school year testified regarding the safety-related circumstances on Championship's campus at the beginning of the school year leading up to the School Board's termination of Championship's charter on August 20, 2019. Specifically, Anne-Valerie Daniel-Laveus, the mother of three students enrolled at Championship during the 2019-2020 school year and a teacher at Championship during that school year, testified that she observed a school security guard present at the school every day. In her experience as a teacher at Championship and as a mother whose children were enrolled there, she perceived conditions at Championship as being safe. To that point, no other parents or students relayed to her any concerns they had regarding safety at Championship at any time during the 2019-2020 school year, including on August 14 through 20, 2019. She was not aware of any incidents, threats, or weapons-related incidents having taken place at Championship at any time during the 2019-2020 school year. Sandra Acosta, the mother of a student enrolled at Championship, testified that she took her child to school daily during the 2019-2020 school year, that she always saw a security guard present on campus when she did so. She always felt that her child was safe at Championship, and that she was not aware of any incidents in which the safety of the students at Championship was threatened. Melissa Bustamante, the mother of two students enrolled at Championship during the 2019-2020 school year and a member of Championship's governing board since 2011, also testified regarding conditions at Championship during the 2019-2020 school year, including on the school days between August 14 and 20, 2019. Specifically, when she took her children to school, she always observed a security guard at the front of the school, which is the only publicly-accessible entrance to the school facility. She was not aware of any bomb threats, weapons threats, or trespassing by unauthorized persons on Championship's campus during the 2019-2020 school year, nor was she aware of any parents of Championship students having expressed concerns regarding safety-related matters at the school during the 2019-2020 school year. As a member of Championship's governing board, she verified that the school had secured the presence of a Davie police officer on campus before, and for some time after, the charter was terminated, and also had secured a school guardian (Chambers) to serve as a safe-school officer for the remainder of the 2019-2020 school year. No evidence was presented showing that there were any actual or imminent threats or dangers to the health, safety, or welfare of the students at Championship on any school days between August 14 and 20, 2019. Additionally, no evidence was presented showing that the presence of Carbone, who had been hired by Championship specifically to provide school safety and security services and who provided those services, presented a threat or danger to the students at Championship on August 14 through 16, 19, and 20, 2019. To the contrary, the witnesses who observed Carbone testified that he was at the front entrance to the school performing his school protection duties. None of them testified that they perceived him as a threat or saw him threatening or endangering the students, and all of them testified that his presence was one reason they perceived Championship's school campus as being safe. Additionally, as noted above, Katz conceded at the final hearing that Championship's having an armed security guard on campus to provide school security services on August 14 through 16, 19, and 20, 2019, did not present an immediate and serious danger to Championship's students. Championship's Standing The School Board took action on August 20, 2019, to immediately terminate Championship's charter, pursuant to section 1002.33(8)(c). Although the School Board subsequently operated Championship for the 2019-2020 school year while these proceedings were pending, if the School Board were to prevail in Case No. 19-4818, Championship's charter would be permanently terminated and the charter school could no longer operate. Thus, the School Board's immediate termination of Championship's charter has caused Championship to suffer an immediate, direct injury that is within the scope of these proceedings, which are brought under sections 1002.33 and 1006.12. Additionally, as discussed below, the School Board applied unadopted rules to Championship in these proceedings to terminate its charter. Findings of Ultimate Fact Immediate Termination of Charter under Section 1002.33(8)(c) Championship's Noncompliance with Section 1006.12 did not Cause Immediate and Serious Danger to Its Students Pursuant to the foregoing, it is found, as a matter of ultimate fact, that the School Board did not prove, by clear and convincing evidence, that an immediate and serious danger to Championship's students was in existence on August 20, 2019, when it immediately terminated Championship's charter. The School Board contends that Championship's failure to have present on its campus a person who met the statutory qualifications for serving as a safe-school officer on August 14 and 15, 2019, coupled with its failure to have a fully-executed contract securing the services of a safe-school officer for Championship by August 20, 2019, constituted an immediate and serious danger to the health, safety, or welfare of Championship's students warranting immediate termination of its charter, pursuant to section 1002.33(8)(c). However, the School Board presented no evidence of any particular facts and circumstances showing that an immediate and serious danger to Championship's students was in existence on August 20, 2019—whether due to Championship's failure to have a person on campus who met the statutory qualifications for serving as a safe-school officer plus a fully-executed contract securing the services of a safe-school officer for Championship, or for any other reason. To that point, there was no evidence presented showing that there were any threats or actions constituting a threat—such as bomb threats, trespassing by unauthorized persons, armed persons presenting a danger or threat, or any other circumstances on Championship's campus that existed on August 20, 2019—or on any other school day in the 2019-2020 school year, for that matter. To the contrary, Championship presented the testimony of three witnesses stating that to their knowledge, there had been no threat or danger whatsoever to Championship's students at any time during the 2019-2020 school year, including on the school days before and including August 20, 2019. Each of these witnesses was in a position to have personally known whether, or be informed if, there had been any actual, immediate threat or danger to the health, safety, or welfare of Championship's students. The very most that may be inferred from the evidence is that not having a person who was qualified as a safe-school officer on campus may have presented a potential threat to Championship's students on August 14 and 15, 2019. However, even such a potential threat—to the extent it may have existed—was substantially diminished by the presence of a trained, armed security guard who had been hired specifically to provide protection to the students, faculty, and staff on campus, and who had satisfied most of the requirements, including the psychological evaluation, to become certified as a school guardian. Further, starting on August 16, 2019, a Davie police officer was present and provided safe-school services on Championship's campus every day for the rest of the school year, including on August 20, 2019, when the School Board immediately terminated Championship's charter. There is no dispute that these law enforcement police officers met the qualifications expressly stated in section 1006.12 to serve as safe-school officers. Therefore, as of August 16, 2019, the only remaining ground for the School's Board's conclusion that an immediate and serious danger existed on Championship's campus warranting immediate termination of its charter was that a contract securing the guaranteed presence of a safe-school officer on Championship's campus had not yet been fully executed. However, no evidence was presented showing that Championship's failure to have a fully-executed contract for a safe-school officer constituted any danger—much less an immediate and serious danger—to its students. Accordingly, there was no factual or circumstantial basis for finding that an immediate and serious danger to Championship's students existed on August 20, 2019, when its charter was terminated. Based on the foregoing, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019, as a result of Championship not having a safe-school officer on August 14 and 15, 2019. Additionally, it is found, as a matter of ultimate fact, that the evidence failed to establish the existence of an immediate and serious danger to Championship's students on August 20, 2019 (or on August 14 through 16, and 19, 2019), as the result of Championship not yet having secured a fully- executed contract guaranteeing the presence of a safe-school officer on Championship's campus. Presence of Armed Security Guard Did Not Constitute an Immediate and Serious Danger As previously discussed, no evidence was presented showing that Carbone presented any threat or danger to the students at Championship on August 14 through 16, 19, or 20, 2019. The witnesses who observed him on those days testified that he performed his school protection duties, and he did not threaten or endanger Championship's students. Additionally, the evidence establishes that the school security and protection services that Carbone provided on Championship's campus on these days were school-sanctioned activities. To that point, Championship hired Carbone for the specific purpose of providing school security services to its students. As such, Carbone was given express permission by Championship's governing board to be on campus specifically to provide school security services to enable and support school-related activities. Based on the foregoing, it is found, as a matter of ultimate fact, that the presence of the armed security guard on Championship's campus on August 14 through 16, 19, and 20, 2019, did not constitute an immediate and serious danger to the health, safety, or welfare of Championship's students warranting the immediate termination of its charter under section 1002.33(8)(c). Unadopted Rules Applied to Championship to Terminate Charter Section 120.57(1)(e)1. states, in pertinent part: "[a]n agency or administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule." This provision prohibits an ALJ or an agency from basing agency action that determines the substantial interests of a party on an unadopted rule. Because this statute is directed at, and specifically circumscribes, the authority of the ALJ, or the agency, as applicable, neither the ALJ nor the agency is authorized to base agency action on an unadopted rule, regardless of whether a party has alleged that a particular agency statement constitutes an unadopted rule. The evidence establishes that in immediately terminating Championship's charter, the School Board determined Championship's substantial interests based on two unadopted rules. Unadopted Rule Interpreting Section 1002.33(8)(c) The evidence shows that the School Board has determined that the failure of a charter school (in this case, Championship) to have, on campus, a safe-school officer who meets the requirements of section 1006.12, to constitute an immediate and serious danger to the health, safety, or welfare of the charter school's students, warranting immediate termination of the school's charter. In so determining, the School Board has interpreted section 1002.33(8)(c)—specifically, the first sentence of that statute16—to define a charter school's failure to comply with section 1006.12 as per se constituting an immediate and serious danger to the health, safety, or welfare of the school's students. This interpretation ascribes a meaning to the first sentence of section 1002.33(8)(c) that is not readily apparent from the literal reading of the statute. Indeed, the first sentence of that section specifically speaks to the "particular facts and circumstances" showing that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists. Thus, the statute's plain language requires that the particular facts and circumstances of each particular case be considered to determine whether those particular facts and circumstances constitute an immediate and serious danger that exists at the time the charter is immediately terminated. Nowhere does the statute's plain language speak to, or authorize, a school board to formulate a categorical determination that a defined set of facts and circumstances—here, noncompliance with section 1006.12—per se constitutes an immediate and serious danger to the charter school's students. It is indisputable that the School Board's interpretation of section 1002.33(8)(c) requires compliance and has the direct and consistent effect of law. This interpretation requires a charter school to comply with section 1006.12—including all of the interpretive gloss the School Board has placed on that statute by imposing the requirement that a fully-executed safe-school officer contract be in place to be in compliance—or face having its charter immediately terminated on the basis of such noncompliance. 16 The first sentence of section 1002.33(8)(c) states: "[a] charter may be terminated immediately if the sponsor sets forth in writing the particular facts and circumstances indicating that an immediate and serious danger to the health, safety, or welfare of the charter school's students exists." § 1002.33(8)(c), Fla. Stat. The evidence also establishes that the School Board uniformly applies this interpretation of section 1002.33(8)(c) to all charter schools in the District. Therefore, the School Board's interpretation of section 1002.33(8)(c) to determine that a charter school's noncompliance with section 1006.12 per se constitutes an immediate and serious danger to the health, safety, or welfare of the charter school's students is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that an immediate and serious danger to the health, safety, or welfare of Championship student's was in existence on August 20, 2019, such that its charter must be terminated. Unadopted Rule Interpreting Section 1006.12 The evidence also establishes that the School Board interprets section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate safe-school officer entity, guaranteeing that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract.17 Nowhere in the plain language of section 1006.12 is there an express requirement for a charter school to have a fully-executed contract for safe- school officer services in order to be in compliance with the statute. Thus, the School Board's interpretation of section 1006.12 imposes a requirement that is not apparent from the literal reading of the statute. 17 Runcie, Katz, and Brown each testified that a fully-executed contract is necessary for a charter school to meet the statutory requirement that a safe-school officer be "established and assigned" to the school. This interpretation of section 1006.12 requires compliance and has the direct and consistent effect of law. Specifically, it requires a charter school to either have a fully-executed contract for safe-school officers in place by the time school is in session, or face having its charter immediately terminated on the basis of such alleged noncompliance. The evidence also shows that the School Board uniformly applies this interpretation of section 1006.12 to all charter schools in the District. Therefore, the School Board's interpretation of section 1006.12 as requiring a charter school to have in place, at the time the school is in session, a fully-executed contract with an appropriate entity that guarantees that a safe-school officer will be present on the school's campus for the entire school day for the specified term of the contract, is a rule. This interpretation has not been adopted as rule pursuant to section 120.54, and, thus, constitutes an unadopted rule, as defined in section 120.52(20). The School Board applied this unadopted rule to Championship to determine that Championship was not in compliance with section 1006.12 on August 20, 2019, such that an immediate and serious danger to its students was in existence on that date, warranting immediate termination of its charter. Alleged Unadopted Rules Challenged under Section 120.56(4) Championship alleges that in immediately terminating its charter, the School Board has formulated and applied two agency statements which constitute unadopted rules. As articulated in the Rule Challenge Petition, these statements are: "[T]he School Board's unadopted policy that it is not legally required to provide safe-school officers to charter public schools within its borders"; and "[T]he School Board's policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." Each of these alleged unadopted rules is separately addressed. Alleged Unadopted Rule that School Board is not Legally Required to Provide Safe-School Officers to Charter Schools in the District The School Board takes the position that it is not required by section 1006.12 to establish or assign safe-school officers to charter schools in the District, and that the responsibility for securing a safe-school officer for a charter school rests solely with the charter school itself. To this point, the School Board contends that the only circumstance under which it ever would be required to assign a safe-school officer to a charter school is if it denied the charter school access to a safe-school officer—which the School Board claims means actively preventing a charter school from securing a safe-school officer, and then declares it has not done so.18 As more fully discussed below, the School Board's interpretation of section 1006.12 ascribes a meaning to the statute that is not readily apparent from a reading of the statute's plain language. Further, the School Board's interpretation requires compliance and has the force and effect of law because it directs charter schools to secure their own safe-school officers and imposes the penalty of charter termination for failure to do so. . The School Board's interpretation of section 1006.12 is applied to every charter school in the District, and, thus, is a statement of general applicability. Therefore, the School Board's statement that it is not required to establish and assign safe-school officers to charter schools except when it has affirmatively prevented a charter school from securing a safe-school officer, is an unadopted rule. 18 The July 9, 2019, memorandum from Brown and Katz to charter school principals states, in pertinent part: "The School Board of Broward County has taken no action to deny any charter school access to any of the safe-school officer options summarized above and more fully detailed in [s]ection 1006.12." The School Board applied this unadopted rule to Championship such that it did not assign a safe-school officer to its campus for the 2019-2020 school year. This led to the School Board determining Championship noncompliant with section 1006.12 and immediately terminating its charter on that basis. Alleged Unadopted Rule that School Board has a Policy of Failing to Collaborate to Facilitate Charter School Access to Safe-School Officers Championship also alleges that "the School Board has a policy of failing to collaborate with charter schools to facilitate access to safe-school officers pursuant to section 1006.12. . . by directing charter schools to either comply with the statute or risk having their charters terminated." By casting the alleged agency statement in these terms, Championship effectively asserts that by not establishing and assigning safe- school officers to charter schools, the School Board has a policy of "failing to collaborate" with charter schools in direct contravention of the second sentence in section 1006.12. The evidence does not show that the School Board has a policy of "failing to collaborate" with charter schools—which would be tantamount to the School Board having a policy of purposefully violating the statute. Rather, as more fully discussed below, the evidence shows that the School Board interprets the phrase "collaborate to facilitate" to mean that it is only required to communicate with charter schools and inform them regarding the safe-school officer requirements of section 1006.12, and to require them to provide documentation showing compliance.19 Championship disputes the correctness of this interpretation, and contends that instead, this phrase means that the School Board must 19 Championship has not challenged the School Board's interpretation of the phrase "collaborate to facilitate" as an unadopted rule in this proceeding. establish and assign a safe-school officer to each charter school if the charter school so chooses.20 Based on the evidence, and for the reasons more fully discussed below, it is determined that the School Board's alleged policy of "failing to collaborate" to facilitate charter school access to safe-school officers is not an unadopted rule. The School Board did not present evidence showing that to the extent the alleged agency statements constituted rules, rulemaking was not feasible or practicable, as provided in section 120.54(1)(a)1. and 2.
The Issue : The issues to be resolved in this proceeding concern whether the Hernando County School Board (Board), the Petitioner, has just cause to terminate the Respondent's employment, related to alleged excessive absences, during the 2007-2008 school year.
Findings Of Fact The Petitioner Board is charged with operating and administering the Hernando County School District. Through its principals and human resources personnel the Board is charged with operating and regulating all personnel matters, including the monitoring of attendance for all employees at each school operated by the Board. Mr. Charles Johnson was the Principal at Westside Elementary School (WES) for the 2007-2008 school year at issue in this case. He had been the principal at that school since 1988 and it was his duty, among other personnel matters, to monitor the attendance of his employees at the school. The Respondent was employed at WES during the 2007-2008 school year. She had been hired to work there for the first time that year. She had, however, been employed by the Board as a teacher since 1997. Prior to the school year in question, the Respondent had a very favorable record as a teacher for the Board. Soon after the Respondent came to work at WES for the 2007-2008 school year she began to exhibit a pattern of frequent absences. The principal, Mr. Johnson, became concerned with Respondent's absences in late September of 2007 because a parent-teacher conference was imminent and report cards or progress reports were due for the first nine-week grading period around that time. The principal maintained a record of the teachers' attendance, including the Respondent. He created a log documenting the Respondent's absences from August 2007 through January 2008. The Respondent was absent five days in August and present for ten days. She was present for ten days and absent for nine days in September. The Respondent was absent on both October 1 and 2, 2007, as well. The Respondent called the principal's secretary on October 2nd to advise that she had a doctor's appointment on the third and would return to work on the fourth. The Respondent did not return to work on October 4th, however. The principal thereupon sent the Respondent a letter advising her that her absences were excessive and she needed to report to work by October 10th. He gave her some lead time in getting back to work because he was unaware of the reasons why she was missing so much work. He also wanted to allow for any delays due to mailing time for his letter, which was mailed on October 4th. The Respondent called the principal and spoke with him on October 8th and advised him that she had been sick and had been "beaten-up." She assured him that she would return to work the next day. The Respondent, however, did not return to work the next day and also failed to come to work on October 10, 2007, as directed in the principal's letter. She did call the school office and leave a voice mail on the principal's phone that morning assuring him that she would be at work the next day, which was October 11th. The Respondent did not return to work on October 11th as promised. Because of her failure to return to work, the principal sent a letter to her dated October 15, 2007, advising her that he had scheduled a "pre-disciplinary hearing" for October 19, 2007, which she should attend. The purpose of that hearing was to give her an opportunity to explain her "excessive absenteeism." The Respondent thereupon was absent from work every day during the week of October 15th, and then failed to attend the scheduled hearing or meeting on October 19th. Moreover, she did not call or otherwise communicate with the principal that week to explain her absences or why she had missed the meeting. Thereafter, the Principal sent the Respondent a letter dated October 23, 2007, again scheduling a pre-disciplinary hearing. The hearing was scheduled for October 30th. The letter was both mailed and personally delivered to the Respondent. Upon receipt of the hand-delivered copy of the letter, the Respondent phoned the principal and spoke to him. According to Mr. Johnson, the Principal, the Respondent told him in this conversation that she had not opened his previous letters, but she assured him she would be at work the following day. The Respondent, however, did not return to work on the following day, which was October 25, 2007, nor did she attend the pre-disciplinary hearing on October 30th, which Mr. Johnson had scheduled. Mr. Johnson, therefore, sent a letter to the Respondent on October 31st advising her that he was recommending to the Superintendent that she be suspended with pay. He sent a letter to the School District office of Labor Relations and Professional Standards on the same day referring the matter to that office, along with copies of all the relevant documents he had which evidenced what be believed were excessive absences. Because of her 10 days or more of consecutive absences, under Board policy, the Respondent was administratively placed on unpaid leave of absence, instead of being suspended with pay as recommended by her principal. The unpaid leave of absence had an effective date of October 15, 2007. Such a leave of absence is designed to enable a principal to replace a teacher in the situation of the Respondent with a permanent certified teacher, to assure continuity of effective instruction. The Respondent was sent instructions regarding her leave of absence by mail on October 15, 2007, from the Human Resources Department of the District. She was thus informed that she could elect to go on extended personal leave or on family medical leave. No information was received from the Respondent in response to this communication, however. The Respondent maintains that she provided a document concerning family medical leave. That form, however, was merely a medical certification statement and not an actual application or request for family medical leave. Moreover, the evidence shows that the Respondent was not qualified for family medical leave, even had a proper application been submitted, because she had not worked a sufficient number of hours in the preceding school year to establish her entitlement to family medical leave under the relevant rules and policies. An employee conference was held with the Respondent on November 2, 2007. The Respondent, the principal, and Ms. Barbara Kidder, who is the Director of Labor Relations and Professional Standards for the School District, were in attendance at the meeting. The Respondent assured them at the meeting that she would return to work the following Monday, November 5th and thereafter maintain satisfactory attendance. She also agreed to seek assistance through the Employee Assistance Program (EAP) and agreed to advise the school when she had appointments with that program. It was not unusual for Mr. Johnson to have continued the disciplinary process and communication with the Respondent about her absenteeism throughout the month of October, even though she was on a leave of absence. She had been placed on that leave of absence by the District so that it could hire a replacement teacher. It was not a leave she had voluntarily requested. Moreover, even without considering the days of absence while she was on her administrative leave of absence, the principal had a basis for pursuing disciplinary action for the absences she had previously incurred. November 5, 2007, was approved by the District as the Respondent's "early return date" from that leave of absence, which had started on October 15th. Indeed, the Respondent came to work on Monday, November 5th. She was, however, absent for the rest of that week. She did not contact either the principal or his secretary concerning those absences. She called the automated system for assigning substitute teachers (SEMS), which does not constitute nor grant any excuse for an absence. It is merely a means of scheduling or assigning substitute teachers. School did not meet on November 12th, a Monday. On Tuesday, November 13th the Respondent called and left a voice mail message for the principal advising that she had been to the doctor on the Friday before for strep throat and a respiratory infection. She assured him that she would be back the following day November 14, 2007. The Respondent, however, did not report to work on November 14th, but instead called and spoke with the principal around 10:00 a.m., advising him that she just left the doctor's office. She advised him that she had a note indicating she would be clear to report to work on the following Monday. The Principal reminded her that the next week was Thanksgiving week and no school met that week. The Respondent then agreed to come to work on Monday, November 26th and advised that she would have the doctor's note with her at that time. The Respondent failed to report to work on November 26th, as she had promised and did not contact the Principal or his secretary concerning that absence. She also missed work November 27th through the 30th, and did not call the principal or his secretary to explain those absences. The principal accordingly sent her another letter on November 29th advising her that a pre-disciplinary meeting was again scheduled for December 4th to discuss her absences. She did not attend the pre-disciplinary meeting on December 4th nor did she report to work that entire week. She failed to contact the principal or his secretary and explain her absences from work that week and her absence from the scheduled meeting. On December 5, 2007, the principal sent another letter to the Respondent advising her that he was referring her case or situation to the labor relations office. On that same date he sent a memorandum to the director of the labor relations office enclosing all the relevant documentation he had regarding the absences. That office then sent the Respondent a letter on December 5th which advised her that a pre-disciplinary meeting was scheduled for December 12th. The pre-disciplinary meeting was held on December 12th and the Respondent and Ms. Kidder were in attendance. Ms. Kidder gave the Respondent information on the EAP and advised her that she would be reviewing the Respondent's case with the Human Resources Office and the Petitioner's attorney. On December 14th the Respondent met with Ms. Kidder and the principal. The Respondent on this occasion was given a "letter of direction," advising her that she would be assigned a "mentor" and advising her of procedures for absences. The procedures she was directed to follow for absences included a stipulation that a doctor's note would be required for all future absences. The letter of direction given to the Respondent on December 14th contained the following requirements or procedures for the Respondent to follow with regard to her work and her absences: She was be assigned a "mentor" teacher to assist her with transitioning back to work. She was to report to administration each day before reporting to her classroom. She was to meet weekly with administration to review her attendance and her progress. She was expected to be in attendance each day starting Monday, December 17, 2007, and was to follow the Principal's specific directions regarding the process for obtaining approval for sick leave. She was to contact the principal if she had any questions concerning working hours, timesheets, absences, tardiness, sickness at work, leaving the building or related employee issues. She was being placed on probationary status for one year and any future violations of Petitioner's policies or procedures or any administrative directives would constitute "just cause" for disciplinary action up to and including termination. She was expected to contact EAP and attend counseling sessions as recommended by the staff. She was then to document the completed counseling sessions to her principal. During the December 14, 2007, meeting, the Respondent agreed to return to work as directed. She gave no indication that she would be unable to return to work or perform her duties or that there would be any restrictions on her ability to return to work. The Respondent provided no doctor's notes explaining illnesses or absences during either the December 14th meeting or the November 2nd meeting with the Principal. In fact, the Respondent did not return to work the following Monday, December 17th. She also missed the rest of that week and did not contact administration directly about her absences as she had been directed to do on December 14th and as the "letter of instruction" had directed her to do. The Respondent produced phone records at the hearing and testified that certain calls represented conversations with either the Principal or his secretary. This was in an effort to show that she had properly explained her absences. She did not, however, provide corroborating testimony as to which of the calls on the records were specific to a person as opposed to simply leaving a voice mail for that number or receiving no answer at all. In any event, Ms. Kidder sent the Respondent a letter on December 20th reminding her that it was her responsibility to provide a doctor's note in explanation of her absences and that she was supposed to return to work on December 17, 2007. The letter reminded the Respondent that her attendance was critical. The last week of December 2007 and the first week of January 2008, constituted the District's school Christmas Break. The first day of school following Christmas Break was Monday, January 7, 2008. The Respondent did not return to work that day, even though she later presented notes from Doctors Khalil and Alshaar indicating that she was able to work that day. The Respondent did report for work on January 8th, but then was absent for January 9th and 10th. She reported for work on January 11th, but later produced a note from Dr. Alshaar indicating that she should be excused for that day. Ms. Kidder sent the Respondent another letter on January 25, 2008, advising her that a "pre-determination hearing" had been scheduled for February 1, 2008, to again review her absences since January 7, 2008. The Respondent acknowledges that she received the correspondence from the Petitioner referenced above. She was also aware of the Petitioner's polices and procedures on attendance and leaves of absence. She signed a receipt indicating that she had received the Staff Handbook which outlines specific policies and references the School Board Policy Manual in general. Additionally, the Respondent acknowledged to the Principal that "time and attendance" were reviewed during her "new employee orientation" at the school. Teacher absences have a negative impact on the classroom, the students and the school. The principal had to ask other teachers to cover the Respondent's classroom and to use substitutes. A teacher's credibility and the trust of students is impaired when the teacher is constantly absent or alternately appearing or being absent from the classroom on a frequent basis. Mr. Johnson established that the Respondent had the worst attendance record he had experienced with a teacher in his 20 or so years as a principal. Her absences for the 2007-2008 school year far exceeded that of any other teacher at the school. The Collective Bargaining Agreement covering teachers in Hernando County, including the Respondent, provides that sick leave is allowable without loss of pay as provided for by Florida Law and that personal leave should be approved by work site administrators, except in cases of substantial emergency. The Hernando County Staff Handbook is in evidence as Petitioner's Exhibit 24. It provides the details of the Board's policies and procedures on absences, leaves of absence, sick leave and leaves made necessary by sudden emergencies, etc. The general information concerning leaves of absence, the policies and procedures concerning family medical leave, notification of absence, absence without leave, sick leave, depicted in that exhibit are incorporated in these Findings of Fact by reference. Those policies and procedures include the requirement that where there is any doubt as to the validity of a sick leave claim, the superintendent may require the filing of a written certification of illness from a licensed physician or other supporting evidence if personal illness is not involved. It then provides the consequences of false claims for sick leave, proceeding to list cancellation of a teacher's contract or for action seeking revocation of a teaching contract. It also includes a provision that an application for sick leave due to extended illness shall have attached to it a statement from a practicing physician certifying that such leave is essential and indicating the probable duration of the illness and the needed leave. There is no question, given the pattern of extensive absences, and given the Respondent's lack of communication with the principal, or even the principal's secretary, concerning the reason for her absences or the legitimacy of any illness, that the Principal could have doubts as to the validity of any sick leave or illness claims. He was thus proceeding within the appropriate policies contained in the Manual and Handbook in requiring physician certification or proof concerning illness or absences, which mostly was not provided by the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Hernando County Florida terminating the Respondent from her position as a teacher with that School District. DONE AND ENTERED this 4th day of December, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 4th day of December, 2008. COPIES FURNISHED: Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Jennifer M. Gallagher 1223 Sanger Avenue Spring Hill, Florida 34608 Wayne S. Alexander, Ed.D. Superintendent Hernando County School Board 919 North Broad Street Brooksville, Florida 34601
The Issue Whether the School Board of Dade County has cause to terminate Respondent's employment on the grounds that Respondent was "willfully absent from duty without leave," within the meaning of Section 231.44, Florida Statutes, as alleged in the Notice of Specific Charges filed in the instant case? If not, what relief should Respondent be afforded?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent was employed as a teacher by the Dade County School Board during the 1988-89 school year on an annual contract basis. His employment commenced on August 31,1988. At all times he was assigned to the ESOL (English for Speakers of Other Languages) program at Carver Middle School. The principal of Carver Middle School, and Respondent's immediate supervisor, was Samuel Gay. Simine Heise was one of Gay's assistant principals. In Gay's absence, Heise served as acting principal. At around 12:00 p.m. on Monday, January 30, 1989, following a meeting with Gay, Respondent became physically ill at school. He left school for the day after notifying Gay and securing his authorization. Respondent was placed on sick leave for the remainder of the school day. At no time thereafter did Respondent report back to work. Various substitute teachers covered Respondent's classes during the period of his absence. Effective April 20, 1989, he was suspended by the School Board and it initiated action to terminate his employment on the ground that he had been willfully absent without authorization. During the period of his absence, Respondent was under the care of a psychiatrist, Dr. Adolfo M. Vilasuso. He was suffering from depression, insomnia, stress, anxiety and stress- induced gastrointestinal distress. He was treated by Dr. Vilasuso with psychotherapy and medication. Respondent's condition was primarily the result of personal problems involving his son and former wife. He was obsessed by these matters. He paid very little attention to anything else, including his teaching responsibilities. Although he was physically able to report to work, he was so distracted and preoccupied by his personal problems that he could not effectively discharge his teaching duties. The School Board requires that, in order to continue to obtain sick leave, a teacher absent because of illness must contact his immediate supervisor or the supervisor's designee by 2:00 p.m. of each day of absence and give notice that he will be out sick the following day. Teachers are advised of this "2:00 p.m. notification" requirement in the teacher handbook, a copy of which Respondent had received prior to his absence. Throughout the period of his absence, Respondent was capable of understanding and complying with this requirement. A teacher who complies with the "2:00 p.m. notification" requirement, but has exhausted all of his accrued sick leave credits, will automatically be placed on authorized leave without pay for illness for a maximum of 30 days, without the necessity of formal School Board approval. The leave will be extended beyond 30 days only if the teacher submits an appropriate application for an extension, accompanied by a "statement from [the teacher's] physician explaining why such [extended] leave is necessary." After leaving school on January 30, 1989, Respondent did not contact any member of the Carver Middle School administration or its staff concerning his absence until Saturday, February 11, 1989, when he telephoned Principal Gay's secretary, Maria Bonce, at her home and left a message with her daughter that he would not be at work the following Monday. On February 15, 1989, Dr. Vilasuso telephoned Carver Middle School and spoke with Assistant Principal Heise. Dr. Vilasuso told Heise that Respondent was under his care. He was vague, however, regarding the nature of Respondent's illness and he did not indicate when Respondent would be able to return to work. On February 21, 1989, not having heard anything further from either Respondent or Dr. Vilasuso, Principal Gay sent Respondent the following letter: The purpose of this communication is to determine your intentions for the balance of this school term. You've been absent from your teaching position at Carver Middle School since 12:00 a.m [sic] on January 30, 1989. On Saturday, February 11, you called my secretary, Mrs. Bonce, indicating you would return to work next week. On February 15, an individual identifying himself as your doctor called Carver Middle School and spoke to the assistant principal, Mrs. Heise. When he was requested [to provide information] about your illness, medical status and your ability to return to work, he stated he would not give further information without your approval. Until now we have not heard from you since February 11 when you contacted Mrs. Bonce at home. Also, the phone number and address we have on record obviously are no longer yours, therefore, I am unable to ccntact you. In addition to the above, we have no lesson plans, roll books, grade books for your students. It has been reported to me by custodial staff that you are frequently observed in the building after duty hours yet you have failed to communicate with me personally or the assistant principal or speak with your department head or the assistant principal for curriculum. I must call your attention to the contract between Dade County Public Schools and UTD and the teacher handbook which has information whiih addresses teachers' absences. You are clearly in violation of these documents. Finally, may I remind you of a memorandum given to you on January 27. A written response was due to me on February 1st. In addition, a conversation for the record was scheduled for February 1st. That conference will be held. You simply need to tell me when. I must remind you that failure to comply with district and local rules can result in non-reappointment for the 1989-90 school year. After receiving the letter, Respondent, on Thursday, February 23, 1989, telephoned Carver Middle School and spoke with Gay. Although he did not indicate to Gay when he was going to return to school, he did leave Gay with the impression that his condition was improving. Respondent also intimated during the telephone conversation that Gay would be receiving a letter from Dr. Vilasuso concerning Respondent's illness. The following Monday, February 27, 1989, at around 9:00 p.m., Respondent telephoned Secretary Bonce at her home and told her that he would be absent from school the remainder of the week due to illness. On Wednesday, March 8, 1989 Respordent telephoned Gay at school. He told Gay that he wanted to apply for sick leave and asked how he would go about doing so. Gay responded that he had referred Respondent's case to the School Board's Office of Professional Standards and that therefore the matter was "out of his hands" and Respondent would have to contact that office. On no occasion other than during the foregoing telephone conversations of February 11, 23 and 27, 1989, and March 8, 1989, did Respondent communicate with Gay or any member of Gay's administrative staff concerning his absence. Respondent's failure to so communicate with either his immediate supervisor or anyone on his immediate supervisor's administrative staff was willful. On March 28, 1989, Dr. Joyce Annunziata, the head of the School Board's Office of Professional Standards, sent Respondent a letter, which provided in pertinent part as follows: The Office of Professional Standards has been advised that you have been absent without authority from your duties as an employee in the Dade County Public Schools. During this period you did not obtain authorized leave from your supervisor. Florida Statute 231.44 provides: Any District school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his employment shall be subject to termination by the school board. Your absence without authorized leave constitutes willful neglect of duty and subjects your employment with the Dade County Schools to immediate termination. Please be advised that unless you provide within five days from receipt of this letter a written notification to the Office of Professional Standards, 1444 Biscayne Boulevard, Suite 215, Miami, FL 33132, of your resolution of your unauthorized leave status, your termination will be submitted to the School Board for final action at its meeting of April 19, 1989. Respondent received Dr. Annunziata's letter on April 10, 1989. He did not provide the Office of Professional Standards with the requisite "written notification" within five days of his receipt of the letter. Accordingly, the matter was considered by the School Board at its April 19, 1989, meeting. Thereafter, Respondent submitted to the Office of Professional Standards a written request for leave without pay for illness. The request sought leave for the period from February 8, 1989, through June 19, 1989. Although the form on which Respondent made his request noted that a "[d]octor's statement indicating diagnosis [and] length of time required for leave" was required, no such statement accompanied Respondent's request. A letter from Dr. Vilasuso concerning Respondent's condition was subsequently received by the Office of Professional Standards on April 28, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board of Dade County enter a final order terminating Respondent's employment as an annual contract teacher pursuant to Section 231.44, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of January, 1990. STUART M. LERNER 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 2nd day of January, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3231 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: School Board's Proposed Findings of Fact Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Rejected because it adds only unnecessary detail. Rejected because it adds only unnecessary detail. First, second and third sentences: Rejected because they add only unnecessary detail; Fourth and fifth sentences: Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. First sentence: To the extent that it suggests that Respondent "never" complied with the "2:00 pm. notification requirement," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. Second sentence: Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Accepted and incorporated in substance. To the extent that it suggests that Respondent was absent without authorization during a portion of the period from January 30, 1989, to April 19, 1989, it has been accepted and incorporated in substance. To the extent that it suggests that he was absent without authorization during the entire period, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Accepted and incorporated in substance. Rejected because it is irrelevant and immaterial. Accepted and incorporated in substance. Rejected because it adds only unnecessary detail. Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Respondent's Proposed Findings of Fact: Rejected because it is a summary of rather than a finding of fact based upon such testimony. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is a summary of testimony, rather than a finding of fact based upon such testimony. Rejected because it is more in the nature of argument than a finding of fact. Accepted and incorporated in substance. First sentence: Rejected because it is more in the nature of argument than a finding of fact; Remaining sentences: Rejected as contrary to the greater weight of the evidence to the extent it suggests that a teacher need not comply with the "2:00 p.m. notification" requirement to obtain authorized leave for illness and that Respondent was on such authorized leave during the first 30 days of his absence. Otherwise, they have been accepted and incorporated in substance. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue, Suite One Miami, Florida 33134 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Joseph A. Fernandez Superintendent of Schools Dade County School Board School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
