08-002831TTS Palm Beach County School Board vs. Rutha Scott Status: Closed Recommended Order on Monday, February 16, 2009.

Summary: Petitioner failed to prove that teacher`s effectiveness in the school system was impaired and conduct, putting 17-year-old student in storage room for 10 minutes, was not so serious that impaired effectiveness could be inferred or misconduct in office.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-2831

)

RUTHA SCOTT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on December 11, 2008, by video teleconference, with the parties

appearing in West Palm Beach, Florida, before Patricia M. Hart,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Vicki L. Evans-Paré, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416-9239

For Respondent: Rutha Scott, pro se

9118E Boca Gardens Parkway

Boca Raton, Florida 33496

STATEMENT OF THE ISSUE

Whether the Petitioner committed the violations alleged in

the Respondent's Petition dated June 11, 2008, and, if so, the

penalty that should be imposed.

PRELIMINARY STATEMENT

In a Petition dated June 11, 2008, the Palm Beach County

School Board ("School Board") charged Rutha Scott with

violations of Florida Administrative Code Rules 6B-1.001(2) and

6B-1.006(3)(a)-(b). These charges were based on allegations

that, during the school day, she sent students into the hallway

without supervision and sent one student into a dark storage

room as disciplinary action. The School Board seeks to

terminate Ms. Scott's employment as a teacher. Ms. Scott timely

requested an administrative hearing, and the School Board

transmitted the matter to the Division of Administrative

Hearings for assignment of an administrative law judge.

Pursuant to notice, the final hearing was held on December 11,

2008.

At the hearing, the School Board presented the testimony of

J. B., Lawrence J. Greenberg, Burley Mondy, Vincent Mintus,

Angelette Green, and, on rebuttal, Tammy Skinner. Petitioner's

Exhibits 1 through 7, 10, 15 through 19, 21, 22, and 27 through

30 were offered and received into evidence. Ms. Scott testified

in her own behalf, and Respondent's Exhibits 1 through 3 were

offered and received into evidence.

The one-volume transcript of the proceedings was filed with

the Division of Administrative Hearings on January 7, 2009, and

the parties timely filed proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The School Board is a duly-constituted school board

charged with the duties of operating, controlling, and

supervising all free public schools within the School District

of Palm Beach County, Florida. Art. IX, § 4(b), Fla. Const;

§ 1001.32, Fla. Stat. (2008). 1 Specifically, the School Board

has the authority to discipline employees. § 1012.22(1)(f),

Fla. Stat.

2. Ms. Scott has been employed as a teacher with the

School Board since 1986. She is a member of the Palm Beach

County Classroom Teachers Association and is subject to the

terms of the Collective Bargaining Agreement Between the School

District of Palm Beach County, Florida, and the Palm Beach

County Classroom Teachers Association ("Collective Bargaining

Agreement").

3. At the times material to this proceeding, Ms. Scott

taught business classes at Palm Beach Central High School ("Palm

Beach Central").

4. In 2006, Ms. Scott was charged with shutting a student

into a windowless, unventilated closet and leaving him there

"for a time estimated to be between ten (10) minutes by you and

fifty (50) minutes by the student and other witnesses." 2 The

superintendent of schools recommended to the School Board that

Ms. Scott be suspended without pay and her employment

terminated. The termination was subsequently rescinded, and

Ms. Scott's discipline for this incident was reduced to a 38-day

suspension without pay.

5. During fourth period on February 1, 2008, Ms. Scott was

teaching a course in computing for colleges and careers. While

she was taking attendance, several students were causing their

computers to "beep." As a result, Ms. Scott sent a few students

outside the classroom, into the hallway. She sent another

student to the storage room that connected her classroom to the

classroom next to hers and told the student to step inside and

shut the door. The student was a male who was 17 years of age

at the time of the final hearing.

6. The storage room was approximately 10 feet wide and

15 feel long. The student remained in the storage room for

approximately 10 minutes, during which time the lights in the

storage room were off.

7. The storage room had two doors, neither of which had

windows, and Ms. Scott could not see the student while he was in

the storage room.

8. After approximately 10 minutes, Ms. Scott opened the

storage room door and told the student he could leave the

storage room. 3

9. The student did not consider his being sent into the

dark storage room a "big deal," and he did not report the

incident to his parents, to another teacher, or to the school

administration. 4

10. On February 15, 2008, a student reported the incident

to a teacher, who reported it to an assistant principal, who

reported it to another assistant principal, who reported it to

the principal, Burley Mondy. Mr. Mondy reported the matter to

the School Board police and requested that a formal

investigation be initiated. Mr. Mondy also removed Ms. Scott

from the Palm Beach Central campus on February 15, 2008, and she

was given an alternate assignment in the Palm Beach County

School District's office.

11. After the investigation was completed, the matter was

subject to an administrative review; a pre-disciplinary meeting

was held with Ms. Scott in attendance; and the matter was

reviewed by the School Board's Employee Investigation Committee.

Based upon the recommendation of the Employee Investigation

Committee, the superintendent of schools recommended to the

School Board that Ms. Scott be suspended without pay and that

proceedings be initiated to terminate her employment. The

School Board approved this recommendation at its June 4, 2008,

meeting.

12. The evidence presented by the School Board is

sufficient to establish that, by sending a student into a dark

storage room for approximately 10 minutes, Ms. Scott exercised

extremely poor professional judgment and that her actions posed

a potential risk to the student's physical and mental health and

safety. The School Board failed to present any evidence to

establish that Ms. Scott's sending several students into the

hall during class constituted poor professional judgment or

posed a potential risk to the students' physical and mental

health and safety. The School Board also failed to present any

evidence to establish that Ms. Scott's effectiveness in the

school system was impaired by the incident at issue, and it is

not reasonable to infer from Ms. Scott's conduct that her

effectiveness was impaired.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

14. Ms. Scott's request for an administrative hearing to

resolve disputed issues of material fact pursuant to

Section 120.57(1), Florida Statutes, initiated "a de novo

proceeding intended to formulate agency action." Beverly

Enters. v. Department of Health & Rehabilitative Servs . 573

So. 2d 19, 23 (Fla. 1st DCA 1990); see also Department of

Transp. v. J.W.C. Co, Inc. , 396 So. 2d 778, 785 (Fla. 1st DCA

1981)("The petition for a formal 120.57(1) hearing . . .

commences a de novo proceeding. Section 120.57(1) proceedings

'are intended to formulate final agency action, not to review

action taken earlier and preliminarily.'")(citations omitted). 5

15. Pursuant to the terms of the Article II, Section M, of

the Collective Bargaining Agreement, "[w]ithout the consent of

the employee and the Association, disciplinary action may not be

taken against an employee except for just cause, and this must

be substantiated by clear and convincing evidence which supports

the recommended disciplinary action." Accordingly, the School

Board must have just cause to terminate Ms. Scott's employment,

and it must prove the allegations in the Petition by clear and

convincing evidence.

16. Section 1012.22(1)(f), Florida Statutes, provides that

a school board has the power to suspend and dismiss employees as

follows:

Suspension and dismissal and return to

annual status.--Suspend, dismiss, or return

to annual contract members of the

instructional staff and other school

employees; however, no administrative

assistant, supervisor, principal, teacher,

or other member of the instructional staff

may be discharged, removed or returned to

annual contract except as provided in this

chapter.

17. It is presumed that, at the times relevant to this

proceeding, Ms. Scott was employed under a professional services

contract. 6 Section 1012.33, Florida Statutes, provides in

pertinent part:

(1)(a) Each person employed as a member of

the instructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts, except continuing contracts

as specified in subsection (4), shall

contain provisions for dismissal during the

term of the contract only for just cause.

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office, incompetency, gross

insubordination, willful neglect of duty, or

being convicted or found guilty of, or

entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving

moral turpitude.

* * *

(6)(a) Any member of the instructional

staff, excluding an employee specified in

subsection (4), may be suspended or

dismissed at any time during the term of the

contract for just cause as provided in

paragraph (1)(a). . . .

18. The definitions of the categories of "just cause"

identified in Section 1012.33(1)(a), Florida Statutes, are set

forth in Florida Administrative Code Rule 6B-4.009, which

provides that "[t]he basis for charges upon which dismissal

action against instructional personnel may be pursued are set

forth in Section 231.36, Florida Statutes [now codified in

Section 1012.33, Florida Statutes]."

19. Before addressing the violations alleged against

Ms. Scott, it is necessary to conform the charges set out in the

Petition to the categories of "just cause" identified in Section

1012.33(1)(a), Florida Statutes. In its Petition, the School

Board charged Ms. Scott with "violating the code of ethics and

professional conduct." There is nothing in the Florida Statutes

providing that School Board employees are subject to suspension

or dismissal for failing to adhere to the Code of Ethics of the

Education Profession as adopted in Florida Administrative Code

Rule 6B-1.001, or to the Principles of Professional Conduct for

the Education Profession in Florida as adopted in Florida

Administrative Code Rule 6B-1.006.

20. Rather, the bases for the decision to terminate an

employee must fall within one of the categories of "just cause"

as defined in Florida Administrative Code Rule 6B4.009. In this

case, the violations of Florida Administrative Code Rules 6B-

1.001 and 6B-1.006 identified in the Petition filed by the

School Board against Ms. Scott fall within the definition of

"misconduct in office" found in Florida Administrative Code Rule

6B-4.009(3), and the charges against her will be treated as a

charge of misconduct in office.

21. "Misconduct in office is defined as a violation of the

Code of Ethics of the Education Profession as adopted in Rule

6B-1.001, F.A.C., and the Principles of Professional Conduct for

the Education Profession in Florida as adopted in Rule 6B-1.006,

F.A.C., which is so serious as to impair the individual's

effectiveness in the school system." Fla. Admin. Code R. 6B-

4.009(3).

22. The provision of the Code of Ethics of the Education

Profession in Florida identified by the School Board in its

Petition as one of the bases for the charge of misconduct in

office against Ms. Scott is Florida Administrative Code Rule 6B-

1.001(2), which provides:

(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.

The provisions of the Principles of Professional Conduct for the

Education Profession in Florida identified by the School Board

in its Petition as the other basis for the charge of misconduct

in office against Ms. Scott are Florida Administrative Code

Rule 6B-1.006(3)(a)-(b) 7 which provides:

(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.

23. Based on the findings of fact herein, the School Board

failed to meet its burden of proving by clear and convincing

evidence that Ms. Scott violated Florida Administrative Code

Rule 6B-1.006(3)(b). Based on the findings of fact herein, the

School Board has, however, met its burden of proving by clear

and convincing evidence that Ms. Scott failed to exercise her

best professional judgment and potentially jeopardized the

student's physical and mental health and safety when she

directed the student to shut himself into a dark storage room,

where she could not monitor his safety. The School Board has,

therefore, proven that Ms. Scott violated Florida Administrative

Code Rules 6B-1.001(2) and 6B-1.006(3)(a).

24. Although the School Board has met its burden of

proving that Ms. Scott violated Florida Administrative Code

Rules 6B-1.001(2) and 6B-1.006(3)(a), there are two elements to

the charge of misconduct in office: In addition to the rule

violations, it is necessary to establish that Ms. Scott's

conduct was "so serious as to impair [her] effectiveness in the

school system" in order to find her guilty of misconduct in

office. Fla. Admin. Code R. 4.009(3).

25. In order to establish that Ms. Scott's effectiveness

in the school system was impaired, the School Board must either

offer clear and convincing evidence that her effectiveness was

impaired, or the conduct must be so serious that it would be

appropriate to infer from the conduct itself that her

effectiveness was impaired. See Purvis v. Marion County School

Board , 766 So. 2d 492, 498 (Fla. 5th DCA 2000)(some conduct is

so serious that, even without evidence of impaired

effectiveness, it can appropriately be inferred that teacher's

effectiveness in school system has been impaired; teacher lied

under oath and resisted arrest); Walker v. Highlands County

School Board , 752 So. 2d 127 (Fla. 2d DCA 2000)(impaired

effectiveness can be inferred when conduct is sufficiently

serious; when teacher failed to follow School Board policy and

lost control of the students in his classroom, impaired

effectiveness was obvious); McNeill v. Pinellas County School

Board , 678 So. 2d 476 (Fla. 2d DCA 1996)(School Board failed to

meet its burden of proof with respect to impaired

effectiveness); MacMillan v. Nassau County School Board , 629 So.

2d 226 (Fla. 1st DCA 1993)(when only evidence of impaired

effectiveness was superintendent's conclusory statements,

evidence was not sufficient to demonstrate loss of effectiveness

in school system).

26. The School Board did not offer any evidence to

establish that Ms. Scott's effectiveness in the school system

was impaired. Furthermore, Ms. Scott's conduct in ordering a

student to enter a dark storage room and to shut the door and

requiring him to remain in the storage room for approximately

10 minutes, though it demonstrated very poor professional

judgment and posed a risk of physical and mental harm to the

student, does not rise to the level of conduct that is so

serious it would be reasonable to infer that Ms. Scott’s

effectiveness in the school system was impaired. The School

Board has, therefore, failed to prove that Ms. Scott committed

misconduct in office and has, consequently, failed to establish

just cause to discipline Ms. Scott.

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 dismissing the Petition filed against

Rutha Scott, immediately reinstating her, and awarding her back

pay for the period of her suspension, as provided in

Section 1012.33(6)(a), Florida Statutes.

DONE AND ENTERED this 16th day of February, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of February, 2009.

ENDNOTES

1 / References herein to the Florida Statutes shall be to the

2008 edition unless otherwise indicated.

2 / Respondent's Exhibit 24; see also transcript at page 135.

3 / Ms. Scott testified repeatedly that she did not put the

student into the storage room. This testimony is rejected as

unpersuasive; the testimony of the student is accepted as the

more credible testimony.

4 / Transcript at pages 22 and 29.

5 / The issue in this de novo administrative proceeding is

whether Ms. Scott committed the violations alleged in the

Petition and, if so, the penalty that should be imposed.

Ms. Scott did not raise any issue regarding the fairness of the

process by which the superintendent of schools decided to

recommend to the School Board that Ms. Scott be suspended

without pay and that termination proceedings should be

initiated. The documents and testimony offered into evidence by

the School Board that detailed the investigation into the

complaint against Ms. Scott and the procedures followed by

School Board personnel in providing the information on which the

School Board based his decision are, therefore, largely

irrelevant to the resolution of the issue presented in this

case.

6 / Neither Ms. Scott nor the School Board presented evidence on

this point, but she was employed subsequent to 1984 and,

therefore, would not be under a continuing contract. See

§ 1012.33(4)(A), Fla. Stat.

7 / In the Executive Summary prepared for the School Board

regarding the recommendation for the suspension and termination

of Ms. Scott, it was observed that the potential violations

committed by Ms. Scott were of "School Board Policy 1.013

Responsibilities of the School District Personnel and Staff, and

Florida Administrative Code 6B-1.006,(3)(a)(e), and 6B-

1.001(2)(3), Principals of Professional Conduct for the

Education Profession in Florida." Respondent's Exhibit 1. In

addition, in its Proposed Recommended Order, the School Board

proposed that Ms. Scott be found to have violated Florida

Administrative Code Rule 6B-1.006(3)(e), which provides that an

educator "shall not intentionally expose a student to

unnecessary embarrassment or disparagement."

As set out above in the Preliminary Statement, the Petition

filed by the School Board charged Ms. Scott with violations of

"Florida Administrative [Code] Rule 6B-1.001(2)" and "Florida

Administrative Code Rule 6B-1.006(3)(a)-(b)." Petition,

paragraphs 31 and 32. Because the School Board did not cite a

violation of Florida Administrative Code Rule 6B-1.006(3)(e) in

its Petition, Ms. Scott cannot be found to have violated this

rule subsection. See Delk v. Dep't of Prof'l Regulation , 595

So. 2d 966 (Fla. Dist. Ct. App. 5th Dist. 1992)("[N]ot only must

the proof at trial or hearing be that conduct charged in the

accusatorial document, but also that the conduct proved must

legally fall within the statute or rule claimed to have been

violated.")

COPIES FURNISHED:

Vicki L. Evans-Pare, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Rutha Scott

9118E Boca Gardens Parkway

Boca Raton, Florida 33496

Dr. Eric J. Smith, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Arthur Johnson, Superintendent

Palm Beach County School District

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406-5869

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 should be filed with the agency that

will issue the final order in this case.