03-001267 Pinellas County School Board vs. Peter W. Newton Status: Closed Recommended Order on Tuesday, August 19, 2003.

Summary: Respondent, a third grade teacher of emotionally handicapped students, gave his students inappropriate assistance of an assessment test. Reprimand and suspension without pay recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1267

)

PETER W. NEWTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to noti ce, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on June 24, 2003, in Largo, Florida.

APPEARANCES

For Petitioner: Jacqueline M. Spoto Bircher, Es quire

School Board of Pinellas County

301 Fourth Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

Whether Respondent, Peter W. Newton, violated Pinellas

County School Board Policies 8.25(1)(k), (v), and (x), the Code

of Ethics and Principles of Professional Conduct of the

Education Profession in Florida, and, if so, what discipline

should be imposed by Petitioner, Pinellas County School Board.

PRELIMINARY STATEMENT

By letter dated February 7, 200 3, Pinellas County School

Board Superintendent, J. Howard Hinesley, Ed.D., advised

Respondent, Peter W. Newton, that he was recommending his

dismissal for violation of school board policies when he

administered the Parallel Reading - Florida Comprehensive

As sessment Test in December 2002.

On February 18, 2003, Petitioner requested a formal

administrative hearing. On April 8, 2003, Respondent forwarded

the case to the Division of Administrative Hearings.

On April 9, 2003, an Initial Order was sent to both

par ties.

On April 17, 2003, the case was scheduled for final hearing

on June 24 and 25, 2003, in St. Petersburg, Florida. On

June 17, 2003, the site of the final hearing was changed by an

Amended Notice of Hearing to Largo, Florida.

The hearing took place o n June 24, 2003, as scheduled.

Petitioner presented seven witnesses: Dale Ross, Joyce Maher,

Kristen Sulte, Sue Frisby, Sharon Corvey, Sheila Jaquish, and

Michael Bessette. Petitioner presented nine exhibits, which

were received in evidence and marked Pe titioner's Exhibits 1, 2,

8A, 9, 10, 11, 12, 13, and 15. Respondent testified and

presented Richard Richardson as an additional witness.

The Transcript of Proceedings was filed on July 11, 2003.

On July 16, 2003, an Order was entered enlarging the time f or

filing proposed recommended orders to July 28, 2003, and, later,

to August 4, 2003. Both parties submitted Proposed Recommended

Orders.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings o f fact are made:

1. Petitioner operates, controls, and supervises the free

public schools of Pinellas County, Florida. It has entered into

individual and collective agreements with the teachers it

employs and publishes policies that control the activitie s of

its teaching professionals.

2. Respondent is employed by Petitioner as a teacher of

emotionally handicapped third graders at Skycrest Elementary

School and has been employed by Petitioner as a teacher of

emotionally handicapped children for six years .

3. Petitioner assesses student and instructional

performance utilizing the Pinellas Instructional Assessment

Portfolio which consists of two tests: the Parallel Reading -

Florida Comprehensive Assessment Test and the Parallel Math -

Florida Comprehensive A ssessment Test. These tests test

students on the Sunshine State Standards which are the Florida

Department of Education Standards for student achievement in

Florida public schools. These tests are given three times

during each school year.

4. Emotionall y handicapped students are required to take

the Parallel Reading - Florida Comprehensive Assessment Test and

the Parallel Math - Florida Comprehensive Assessment Test.

5. Published rules govern teacher conduct in administering

these tests. Teachers can only make general statements of

encouragement to students. A teacher cannot read any portion of

the tests to the students nor can a teacher provide input or

comment on a student's answers or failure to answer.

6. The Florida Comprehensive Assessment Test is a state -

wide assessment test given to particular grades annually. The

Florida Department of Education has mandated that third grade

students achieve a passing score on the Florida Comprehensive

Assessment Test be allowed to progress into the fourth grade.

It is suggested that, in addition to the student and

instructional assessment function, the district - wide Parallel

Reading - Florida Comprehensive Assessment and Parallel Math -

Florida Comprehensive Assessment Tests prepare students for the

state - wide Florid a Comprehensive Assessment Test.

7. Respondent acknowledged understanding the published

rules prohibiting providing assistance to his students while

they took the Parallel Reading - Florida Comprehensive Assessment

Test. He also acknowledged assisting his students during the

December 2002 test in ways prohibited by those same rules.

8. Two full school days are dedicated to each portion of

the test. Over the course of the test week, Respondent gave

prohibited assistance to each of his nine emotionally

hand icapped students. Some of Respondent's students were

apparently overwhelmed by the test and did not make a sincere

effort. After examining their test booklets, he encouraged

these students to go back and to continue trying. He examined

answers to multip le - choice questions and sent students back to

work harder on an answer, indicating by inference that the given

answer to a particular question was incorrect. He read words

and phrases to students, sounded out words, and pointed out

sections of the text in which an answer could be found. While

it does not appear that Respondent actually gave any student the

correct answer to a question, he certainly directed students to

answers.

9. Respondent acknowledged the inappropriateness of his

conduct but offered t he excuse that he was trying to give his

students the confidence of believing in themselves, that they

could make passing scores on the Florida Comprehensive

Assessment Test and advance to the fourth grade.

10. Respondent's admittedly inappropriate conduc t does not

appear to be motivated by anything other than a misguided

attempt to help his students by instilling the confidence that

would necessarily result from the belief that they had done well

on the test.

CONCLUSIONS OF LAW

11. The Division of Admini strative Hearings has

jurisdiction of the parties and the subject matter. Section

120.57, Florida Statutes; Sublett v. District School Board of

Sumter County , 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

12. Subsections 1001.32(2) and (3), Florida Statutes, read

as follows:

(2) DISTRICT SCHOOL BOARD. – In accordance

with the provisions of s. 4(b) of Art. IX of

the State Constitution, district school

boards shall operate, control, and supervise

all free public schools in their respective

districts and may e xercise any power except

as expressly prohibited by the State

Constitution or general law.

(3) DISTRICT SCHOOL SUPERINTENDENT. –

Responsibility for the administration and

management of the schools and for the

supervision of instruction in the district

sh all be vested in the district school

superintendent as the secretary and

executive officer of the district school

board, as provided by law.

13. A district school board is considered the "public

employer," as that term is used in Chapter 447, Part II, F lorida

Statutes, "with respect to all employees of the school

district." Subsection 447.203(2), Florida Statutes. As such,

it has the right "to direct its employees, take disciplinary

action for proper cause, and relieve its employees from duty

because o f lack of work or other legitimate reasons." Section

447.209, Florida Statutes. Any instructional staff member may

be suspended or dismissed at any time during the school year for

just cause which includes misconduct in office as that term is

defined by the State Board of Education. Subsection

1012.33(1)(a), Florida Statutes.

14. The appropriate standard of proof in a school board

dismissal proceeding is preponderance of evidence, unless the

collective bargaining agreement covering the bargaining unit o f

which the employee is a member prescribes a more demanding

standard of proof. McNeill v. Pinellas County School Board , 678

So. 2d 476 (Fla. 2d DCA 1996); Sublett v. Sumter County School

Board , 664 So. 2d 1178 (Fla. 5th DCA 1995). Neither party here

has pointed to or offered evidence of any contractual provision

that would require Respondent to satisfy a stricter standard of

proof.

15. Because the statute and rules providing grounds for

terminating Petitioner's contract are penal in nature, they must

be construed in favor of the employee. Rosario v. Burke , 605

So. 2d 523 (Fla. 2d DCA 1992); Lester v. Department of

Professional Regulations , 348 So. 2d 923 (Fla. 1st DCA 1977).

16. When a school board seeks to terminate an employee's

contract for just cau se, it must establish each and every

element of the charge. MacMillan v. Nassua County School Board ,

629 So. 2d 226 (Fla. 1st DCA 1993).

17. Any disciplinary action taken against the employee may

be based only upon the conduct specifically alleged in the

written notice of specific charges. Lusskin v. Agency for

Health Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA

1999); Cottrill v. Department of Insurance , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996); Klein v. Department of Business and

Professional Regulation , 625 So. 2d 1237, 1238 (Fla. 2d DCA

1993); and Delk v. Department of Professional Regulation , 595

So. 2d 966, 967 (Fla. 5th DCA 1992).

18. Petitioner's February 7, 2003, letter, which is the

"charging document," alleges that

. . . in December, 2002, while administering

the Parallel Reading Florida Comprehensive

Assessment Test (PR - FCAT), you provided

assistance to most of your students. You

reviewed student answers, and if they were

wrong, you directed students to go back and

do more work on t he test. You answered

student questions and provided them with

assistance to read the passages and the

questions. You also directed students to

rewrite their responses on the long answer

questions and pointed to specific passages

on the test where the an swers could be

found. In addition you boasted to co -

workers about how well your students

performed on the test. In your actions are

a violation of School Board Policy

8.25(1)(k),(v) and (x), the Code of Ethics

and Principles of Professional Conduct of

th e Education Profession in Florida, and

constitute just cause for your dismissal for

misconduct in office, pursuant to Florida

Statutes 1012.33.

19. Pinellas County School Board Policy 8.25, Disciplinary

Guidelines For Employees, reads, in pertinent part, as follows:

(1) The school district generally follows

a system of progressive discipline in

dealing with deficiencies in employee work

performance or conduct. Progressive

discipline may include, but is not limited

to, verbal or written counseling or c aution,

written reprimand, suspension without pay

and dismissal. The severity of the problem

or employee conduct will determine whether

all steps will be followed or a

recommendation will be made for suspension

without pay or dismissal. When there is a

r ange of penalties, aggravating or

mitigating circumstances will be considered.

* * *

OFFENSE PENALTY RANGE

* * *

(k) Using Position Caution - Dismissal

for Personal Gain

* * *

(v) Misconduct or Caution - Dismissal

Misconduct in Office

* * *

(x) Failure to Comply Caution - Dismissal

With School Board Policy

20. The term "misconduct in office" is not defined in

Subsection 1012.33(1)(a), Florida Statutes; the term is defined

in Rule 6B - 4.009, Florida Administrative Code, as follows:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, FAC., and the Principles of

Professional Conduct for the Education

Prof ession in Florida as adopted in Rule 6B -

1.006, FAC., which is so serious as to

impair the individual's effectiveness in the

school system.

21. The "Code of Ethics of the Education Profession," Rule

6B - 1.001, Florida Administrative Code, reads as follows:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of

maintaining the respect and confidence of

one's colleagues, of students, of parents,

and of other members of the community, the

educator strives to a chieve and sustain the

highest degree of ethical conduct.

22. The "Principles of Professional Conduct for the

Education Profession in Florida," Rule 6B - 1.006, Florida

Administrative Code, reads as follows:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other penaltie s as

provided by law.

(3) Obligation to the student requires

that the individual:

(a) Shall make reasonable effort to

protect the student from conditions harmful

to learning and/or to the student's mental

and/or physical health and/or safety.

(b ) Shall not unreasonably restrain a

student from independent action in pursuit

of learning.

(c) Shall not unreasonably deny a student

access to diverse points of view.

(d) Shall not intentionally suppress or

distort subject matter relevant to a

st udent's academic program.

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or

deny a student's legal rights.

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition, sexual

orientation, or social and family background

and shall make reasonable effort to assure

that each student is prot ected from

harassment or discrimination.

(h) Shall not exploit a relationship with

a student for personal gain or advantage.

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

dis closure serves professional purposes or

is required by law.

(4) Obligation to the public requires

that the individual:

(a) Shall take reasonable precautions to

distinguish between personal views and those

of any educational institution or

organizat ion with which the individual is

affiliated.

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

(c) Shall not use institutional

privileges for personal gain or advanta ge.

(d) Shall accept no gratuity, gift, or

favor that might influence professional

judgment.

(e) Shall offer no gratuity, gift, or

favor to obtain special advantages.

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

(b) Shall not on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition if otherwise

qualified, or social and family background

deny to a colleague professional benefits or

advantages or participation in any

professional organization.

(c) Shall not interfere with a

colleague's exercise of political or civil

rights and responsibilities.

(d) Shall not engage in ha rassment or

discriminatory conduct which unreasonably

interferes with an individual's performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressiv e

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

(e) Shall not make malicious or

intentionally false statements about a

colleague.

(f) Shall not use coerci ve means or

promise special treatment to influence

professional judgments of colleagues.

(g) Shall not misrepresent one's own

professional qualifications.

(h) Shall not submit fraudulent

information on any document in connection

with professional a ctivities.

(i) Shall not make any fraudulent

statement or fail to disclose a material

fact in one's own or another's application

for a professional position.

(j) Shall not withhold information

regarding a position from an applicant or

misrepresent an assignment or conditions of

employment.

(k) Shall provide upon the request of the

certificated individual a written statement

of specific reason for recommendations that

lead to the denial of increments,

significant changes in employment, or

terminat ion of employment.

(l) Shall not assist entry into or

continuance in the profession of any person

known to be unqualified in accordance with

these Principles of Professional Conduct for

the Education Profession in Florida and

other applicable Florida S tatutes and State

Board of Education Rules.

(m) Shall self - report within forty - eight

(48) hours to appropriate authorities (as

determined by district) any arrests/charges

involving the abuse of a child or the sale

and/or possession of a controlled subs tance.

Such notice shall not be considered an

admission of guilt nor shall such notice be

admissible for any purpose in any

proceeding, civil or criminal,

administrative or judicial, investigatory or

adjudicatory. In addition, shall self - report

any convict ion, finding of guilt,

withholding of adjudication, commitment to a

pretrial diversion program, or entering of a

plea of guilty or Nolo Contendere for any

criminal offense other than a minor traffic

violation within forty - eight (48) hours

after the final j udgment. When handling

sealed and expunged records disclosed under

this rule, school districts shall comply

with the confidentiality provisions of

Sections 943.0585(4)(c) and 943.059(4)(c),

Florida Statutes.

(n) Shall report to appropriate

authorities any known allegation of a

violation of the Florida School Code or

State Board of Education Rules as defined in

Section 231.28(1), Florida Statutes.

(o) Shall seek no reprisal against any

individual who has reported any allegation

of a violation of the Florida School Code or

State Board of Education Rules as defined in

Section 231.28(1), Florida Statutes.

(p) Shall comply with the conditions of

an order of the Education Practices

Commission imposing probation, imposing a

fine, or restricting the auth orized scope of

practice.

(q) Shall, as the supervising

administrator, cooperate with the Education

Practices Commission in monitoring the

probation of a subordinate.

23. For Respondent's conduct to constitute "misconduct in

office" there are two ess ential elements: first, violation of

the "Code of Ethics of the Education Profession," Rule 6B - 1.001,

Florida Administrative Code, and the "Principles of Professional

Conduct for the Education Profession in Florida," Rule 6B - 1.006,

Florida Administrative Code; and, second, that violation of the

aforementioned Code of Ethics and Code of Professional Conduct

was so serious as to impair the individual's effectiveness in

the school system. Without discussing the degree which

Respondent's admitted misconduct v iolated the Code of Ethics or

the Code of Professional Conduct, no evidence was presented that

addressed whether Respondent's effectiveness as a teacher has

been impaired. Therefore, no findings of fact has been made

regarding this element of the proof of "misconduct in office."

Petitioner has failed to carry its burden of proof that

Respondent's actions were so serious that his effectiveness as a

member of the instructional staff was impaired, and neither the

nature of the offense nor the circumstances i n which the offense

was committed can reasonably support an inference that

Respondent's effectiveness as a teacher was impaired. While it

is acknowledged that the presentation of specific evidence to

support the allegation of impaired teaching effectivene ss is not

absolutely necessary, see , for example, Purvis v. Marion County

School Board , 766 So. 2d 492, 498 (Fla. 5th DCA 2000), nothing

in the evidence presented leads the undersigned Administrative

Law Judge to conclude that Petitioner's over - all teachin g

effectiveness is impaired by the inappropriate assistance he

gave his students on this occasion.

24. No evidence was presented that suggests that

Respondent was guilty of "using [his] position for personal

gain" in violation of School Board Policy 8.25( 1)(k).

25. Respondent violated School Board Policy 8.25(1)(x) by

providing his students prohibited assistance on the Parallel

Reading - Florida Comprehensive Assessment Test.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, and being mindful that Petitioner, as stated in its Policy

8.25, Disciplinary Guidelines for Employees, "follows a system

of progressive discipline," and giving full consideration to the

apparent misguided motivation of Respondent, it is

RECOMMENDED that Pet itioner reprimand Respondent for his

conduct and suspend him without pay from February 25, 2003,

through the end of the 2002 - 2003 school year.

DONE AND ENTERED this 19th day of August, 2003, in

Tallahassee, Leon County, Florida.

S

JEFF 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 th e Clerk of the

Division of Administrative Hearings

this 19th day of August, 2003.

COPIES FURNISHED :

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Jacqueline M. Spoto Bircher, Esquire

School Boar d of Pinellas County

301 Fourth Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

Honorable Jim Horne

Commissio ner of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. J. Howard Hinesley, Superintendent

Pinellas County School Board

301 Fourth Street, Southwest

Largo, Florida 33770 - 3536

NOTICE OF RIGHT TO S UBMI T EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.