05-002316 Orange County School Board vs. Cynthia Bradford Status: Closed Recommended Order on Friday, March 17, 2006.

Summary: Respondent read a profanity-laced, sexually explicit book to exceptional student education students. She is guilty of "misconduct in office."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2316

)

CYNTHIA BRADFORD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notic e, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

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

on January 25, 2006 , in Orlando, Florida.

APPEARANCES

For Petitioner: Brian F. Moes, Esquire

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802 - 0271

For Respondent: Carol R. Buxton, Esquire

Florida Education Association

140 South University Drive, Suite A

Plantation, Florida 33324

STATEMENT OF THE ISSUE S

Did Respondent, Cynthia Bradford, commit the violations as

alleged in the Administrative Complaint, an d, if so, what

disciplinary action should be imposed?

PRELIMINARY STATEMENT

On May 26, 2005, Petitioner, Orange County School Board ,

filed an Ad ministrative C omplaint , seeking "the severance of

Respondent's annual contract with Petitioner pursuant to Secti on

1012.33, Florida Statutes," for acts alleged in the

A dministrative C omplaint , which are "in violation of School

Board Policies and constitute misconduct in office, willful

neglect of duty, gross insubordination, conduct unbecoming a

public employee, and breach of Respondent's employment agreement

with the School Board." On June 21, 2005, Respondent filed a

Notice of Appeal of Petitioner's decision "to terminate

Resp ondent's contract of employment " and requested a f inal

hearing.

On June 28, 2005, the cas e was forwarded to the Division of

Administrative Hearings. On that same date , an Initial Order

was sent to both parties. Based on the responses of the

parties, on July 25, 2005, the case was scheduled for final

hearing on September 27, 2005, in Orlando, Florida. Thereafter,

the case was rescheduled several times; it was heard on

January 25, 2006.

At the January 25, 2006, hearing, Petitioner presented the

testimony of Cynthia Gainous, Respondent’s classroom assistant;

Arnetta Heidelberg, a ssistant p rinc ipal; Valeria Maxwell,

p rincipal; Johnathan McIntire, s pecial s tudent e ducation

d irector for Orange County Public Schools , who was accepted as

an expert witness in special education; D.C., a student who

testified by deposition; and Donald Shearer, s enior m anager with

Employee Relations. Petitioner offered nine exhibits , which

were received into evidence and marked Petitioner's Exhibits 1

through 9.

Respondent testified on her behalf and offered the

testimony of N.B . , student; P.S., student; Frances Hinson,

former school board employee; and Guy Kinney, a teacher.

Respondent offered two exhibit s , which w ere received in to

evidence and marked Respondent's Exhibit s 1 and 2 . The parties

agreed to enter the Collective Bargaining Agreement as Joint

Exhibit 1.

The T ranscript of the hearing was filed with the Clerk of

the Division of A dministrative Hearings on February 13, 2006.

Proposed recommended orders were to be filed by February 28,

2006. On February 28, 2006, Petitioner requested an extension

of the filing date to March 6, 2006, which was not opposed, and

an order extending the date for filing proposed recommended

orders to March 6, 2006, was entered. Both parties timely filed

Proposed R ecommended Orders , which were thoughtfully considered.

In considering t he deposition of D.C., the objection raised

on page 22, lines 18 through 20 , is overruled.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of fact are made:

1. Petitioner, Orange County S chool Board , is the

governmental entity responsible for the operation, supervision,

and control of public schools in Orange County, Florida,

including the employment of personnel associated with the

educational process.

2. Respondent is a white, femal e em ployed by Petitioner as

an e xceptional s tudent e ducation (ESE) annual contract teacher.

She taught students with learning and/or emotional disabilities

at Meadowbrook Middle School.

3. The students that testified, D.C., N.B., and P.S., are

all exception al education students with mental handicaps,

learning disabilities, and/or emotional disabilities. These

student s are African - American, which is the predominate race of

the Meadowbrook Middle School population.

4. E SE s tudents with mental handicaps, lear ning

disabilities, and/or emotional disabilities require a greater

period of time and more intensive instruction to acquire

knowledge and skills taught in the school curriculum. Students

with these problems have difficulty processing emotion, which

impact s on their ability to function socially and academically

in an educational setting.

5. These students are taught in a “self - contained”

classroom environment with a lower teacher - to - student ratio and

more individualized instruction time each school day. They

remain within Respondent’s classroom the greater part of each

school day , leaving only for special classes.

6 . These students have a diminished cognitive capacity for

abstract thought processing and have difficulty grasping,

intellectually and comfor tably, the concepts described in the

book noted hereinbelow. Some of these students would be at high

risk for working with concepts articulated in the book.

7 . Meadowbrook Middle School has a Reading Achievement and

Progress course, referred to as the “R AP” program. RAP

instruction is provided school - wide in every class each day

during the sixth period. While the primary focus of RAP is to

promote reading proficiency, it is also used to instruct

students on character development. This is done with the

teacher reading aloud to the class and engaging the student in

pertinent discussion about character with reference to the

topics discussed in the particular book.

8 . All teachers at Meadowbrook Middle School, including

Respondent, received training on the implementation of the RAP

program before the start of the school year and throughout the

school year. Respondent participated in the RAP pre - planning

and staff development meetings each of the three years that she

taught at Meadowbrook Middle School .

9 . In connection with RAP training, Respondent received a

“R.A.P. Curriculum and Instruction Guide” to provide classroom

assistance and resource information for teachers implementing

the RAP program. In addition to containing a list of

140 recommended book s, the c urriculum g uide provided teachers

with the following guidance on the selection of reading

materials:

Choose a quality book – this may seem like

an obvious thing to do but it is one that

many teachers failed to do. A poor book

cannot be made better , no matter how well

the reader re ads it, so choose a book that:

(1) Has significant literary value;

(2) Is developmentally appropriate for

the target age level students; and/or

(3) Affords instructional opportunities

(e.g., you can use it to tea ch a specific

concept or skill) . . .

While there is a list of recommended books, there is no

"approved" reading list. A teacher has the latitude to select

any book he or she deems appropriate.

10 . The Meadowbrook Middle School library has class sets

of books for teachers to check out for RAP. Class sets are just

that: forty novels -- one for each student -- so that each student

can read his or her own copy of the book along with the teacher

and the rest of the class.

1 1 . Meadowbrook Middle School has a l iterary coach who is

available to assist teachers in the selection of books or other

aspects of implementation of the RAP program.

12 . Respondent selected a book titled Dumb As Me to read

to her ESE students during RAP. This book was not on the

recommend ed book list or available in the school library. She

believed the book would capture the interest of her students and

present a negative example to stimulate character development

discussions. She chose the book because it reflects African -

American inter - city culture, similar to the Bluford series which

is available in the school library. She did not consult with

the literary coach or any other Meadowbrook Middle School

educational professional in the selection of the book.

13 . Dumb As Me , is fiction ab out a married, African -

American male who lives a self - described “pimp” and “player”

lifestyle. The book describes in graphic detail sexual behavior

including cunnilingus, masturbation, fellatio, sadism , and

sexual intercourse. The book is filled with pro fanity,

including " shit ," " fuck ," " motherfucker ," and such words as

" ass, " " pussy, " " cock, " and " dick " as descriptions of the human

sexual organs.

14 . If Respondent's students had uncensored access to the

book, it would be harmful to them. Most of the ti me the book

was locked in a cabinet in the classroom. Through unfortunate

circumstance, Respondent's students, or some of them, gained

access to the book and read it.

15 . When Respondent read the book in class , she sometimes

edited the book substituting "F - word" for "fuck," for example.

On other occasions, she read the plain text of the novel ,

including depictions of graphic sexual activity and profanity.

16 . As a practical matter, the students are aware of most

of the profanity contained in the book. When the same profanity

is used by students in class, Respondent attempts to discuss the

particular word, "bitch" for example, and explain why it is an

inappropriate term.

1 7 . An adult teacher's aid assigned to Respondent's

classroom was present when Res pondent read part of the novel to

her students. She left the classroom after Respondent read a

sexually explicit portion of the book about the protagonist

engaging in cunnilingus with his mistress. This adult teacher's

aid reported Respondent's having re ad the particular book to the

school principal.

1 8 . As a result of this report, the principal obtained and

read portions of the book. Another administrative employee

undertook an investigation that involved interviewing several of

Respondent's students. The investigation confirmed that

Respondent had read sexually explicit and profanity - laced

portions of the novel to her students.

1 9 . Respondent appears to be a sensitive and concerned

teacher ; however, the error in judgment demonstrated by her

selection of Dumb As Me to be read to learning disabled,

emotionally and mentally handicapped children raises question of

her competence to teach children.

20 . Reading the book, as she did, with its graphic

depiction of sexual activity and profanity, exposed Respo ndent's

students to conditions harmful to their social, emotional, and

academic development.

2 1 . During the investigation and subsequent activities,

Respondent misstated the extent that she had read sexually

explicit and profanity - laced portions of the bo ok to her

students.

2 2 . Respondent's effectiveness as a teacher was diminished

by her selection of the particular book and reading sexually

explicit and profanity - laced sections of the book to her

students.

CONCLUSIONS OF LAW

2 3 . The Division of Administ rative Hearings has

jurisdiction of the parties to and the subject matter of these

proceedings . § 120.57, Fla . Stat . (2005 ) ; Sublett v. District

School Board of Sumter County , 617 So. 2d 374, 377 (Fla. 5 th DCA

1993).

2 4 . Petitioner is the constitutional entity charged with

the operation, control, and supervision of public schools in

Orange County, Florida. Art. IX, § 4, Fla. Const.

2 5 . A district school board is considered the “public

employer,” as that term is used in Chapter 447, Part II, Florida

Stat utes (200 4 ) . As such, it has the right “to direct its

employees, take disciplinary action for proper cause, and

relieve its employees from duty because of lack of work or other

legitimate reasons.” § 447.209, Fl a. Stat . (200 4 ) . Any

instructional staff m ember 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. § 1012.33(1)(a), Fla . Stat . (200 4 ) .

2 6 . The appropriate standard of proof in a school board

dismissal proceeding, such as the instant case, is preponderance

of evidence. Sublett v. Sumter County School Board , 664 So. 2d

1178 (Fla. 5 th DCA 1995).

2 7 . When a school board seeks to terminate an employee’s

contract for just cause, it must establish each and every

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

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

2 8 . Any disciplinary action taken against the employee may

be based only upon the conduct specifically alleged in the

wri tten notice of specific charges. Lusskin v. Agency for

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

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

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

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

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

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

2 9 . Petitioner’s Administrative Complaint, which is the

“charging document”, alleges, in pertinent part,:

4. That on or about April 8, 2005,

Ms. Ann Gainous, a paraprofessional in the

classroom of the Respondent, gave a

statement to management that the Respondent

was reading a book containing sexually

explicit language. Attached hereto and

incorporated herein a s attachment "A" is a

copy of Ms. Ganious' statement.

5. Following this report the principal

confiscated the book titled “Dumb As Me”

from the Respondent. This book does have

sexually graphic material. Attached hereto

and incorporated herein as attac hment "B"

are copies of three pages from this book.

6. That on or about April 22, 2005, a

student gave a s tatement confirming that an

in appropriate book was being read to

students in the Respondent’s classroom.

Attached hereto and incorporated herein as

attachment "C" is a copy of the student's

statement.

7. That on or about May 10, 2005, at a

due process, pre - determination meeting, the

Respondent admitted reading the book “Dumb

As Me” to some of her students. The

Respondent stated she was attempt ing to

reach her students on their cultural and

env ironmental level.

* * *

11. Such actions by the Respondent are in

violation of School Board Policies and

constitute misconduct in office, willful

neglect of duty, gross insubordination,

conduct unbecoming a public employee, and a

breach of Respondent’s employment ag reement

with the School Board.

12. Said violations are sufficient

grounds to sever the annual contract status

of Respondent and to terminate her

employment with the School Board o f Orange

County, Florida.

30 . The term “misconduct in office” is not defined in

Subsection 1012.33(1)(a), Florida Statutes (200 4 ) ; the term is

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

(3) Misconduct in office is defined as a

vi olation 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

Profession in Florida as adopted in Rule 6B -

1.006, FAC., which is so serious as to

impair the individu al’s effectiveness in the

school system.

3 1 . The “Code of Ethics of the Education Profession,”

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

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion t o 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 profess ional

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 import ance 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 achieve and sustain the

highest degree of ethical conduct.

3 2 . The “Principles of Professional Con duct for the

Education Profession in Florida,” Florida Administrative Code

Rule 6B - 1.006, reads, in pertinent part, a s follows:

( 1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education 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 penalties 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.

3 3 . Respondent’s selection and oral reading of the

portions of the book Dumb As Me , which were pr ofanity - laced and

contained graphic sexual content , to her class of ESE students

violated Florida Administrative Code Rule 6B - 1.001, the Code of

Ethics of the Education Profession , in that it demonstrated a

lack of professional concern for her students. R espondent’s

actions further violated the Principles of Professional Conduct

set forth in Florida Administrative Code Rule 6B - 1.006(3)(a).

Respondent exposed her students to conditions harmful to

learning and their mental health and safety. Therefore,

Pet itioner has demonstrated, by a preponderance of evidence,

that Respondent’s actions constitute misconduct in office.

3 4 . Petitioner failed to present sufficient evidence to

sustain the remaining alleged violation enumerated in paragraph

11 of the Administ rative Complaint.

RECOMMENDATION

Based on the foregoing f indings of f act and c onclusions of

l aw, it is

RECOMMENDED that a final order be entered finding that

Respondent's "misconduct in office" constitutes “just cause”

under Section 1012.33, Florida Statut es (2005), to dismiss her

from her employment as a teacher with Petitioner, Orange County

School Board .

DONE AND ENTERED this 1 7 th day of March , 2006 , 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 the Clerk of the

Division of Administrativ e Hearings

this 1 7 th day of March , 2006 .

COPIES FURNISHED :

Brian F. Moes, Esquire

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802 - 0271

Carol R. Buxton, Esquire

Florida Education Association

140 South Univer sity Drive, Suite A

Plantation, Florida 33324

Honorable John Winn , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Ronald Blocker, Superintendent

Orange County Sch ool Board

Post Office Box 271

Orlando, Florida 32802 - 0271

NOTICE OF RIGHT TO SUBMIT 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 shou ld be filed with the agency that

will issue the final order in this case.