08-003986TTS Palm Beach County School Board vs. Gwendolyn Johnson Status: Closed Recommended Order on Thursday, April 16, 2009.

Summary: Respondent committed misconduct in office by failing to submit accurate student enrollment counts to the District and State, seriously impairing her effectiveness as a school principal. Recommend a 20-day suspension without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-3986

)

GWENDOLYN JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard, pursuant to notice, by video

teleconference at sites in West Palm Beach and Tallahassee,

Florida, on December 2 and 3, 2008, before Administrative Law

Judge Eleanor M. Hunter of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Sonia E. Hill-Howard, Esquire

Palm Beach County School District

3318 Forest Hill Boulevard, C-302

Post Office Box 19239

West Palm Beach, Florida 33416-9239

For Respondent: Frederick W. Ford, Esquire

2801 PGA Boulevard, Suite 110

Palm Beach Gardens, Florida 33410

STATEMENT OF THE ISSUE

The issue is whether Respondent should be suspended from

employment for twenty days without pay for misconduct and

unprofessional conduct in violation of School District Policies

1.013 and 1.014, Florida Administrative Code Rules 6B-1.001(3)

and 6B-1.006(4)(b), (5)(a) and (5)(h), and School Board

Bulletins #P-12542-CAO/COO-Count Day and Class Size Reduction

Review, and #P-12519-CAO/COO-Florida Department of Education

Student Enrollment Procedures.

PRELIMINARY STATEMENT

The Palm Beach County Superintendent of Schools received a

recommendation, based on an internal administrative review, that

Respondent should be terminated from employment. On July 17,

2008, the Superintendent notified Respondent that he was

recommending that she be suspended without pay for twenty days.

The notice informed Respondent that she could request a formal

administrative hearing, and she timely made that request on

July 24, 2008. Petitioner filed a petition to have the

recommended penalty imposed and forwarded the case to the

Division of Administrative Hearings. As requested by the

parties, a formal hearing was scheduled by the assigned

Administrative Law Judge, June C. McKinney, for December 2 and

3, 2008. The case was subsequently transferred to the

undersigned.

Prior to the hearing, a Motion to Quash Subpoenas from both

Petitioner and Respondent issued to a person, who also faced

pending disciplinary proceedings based on the same facts and

circumstances as Respondent, was granted. An alternative motion

to use that person's prior statements that were not subject to

cross-examination also was denied. Counsel for Respondent moved

to strike the allegation, made for the first time in

Petitioner's section of the Pre-hearing Stipulation, that

Respondent also violated Section 1003.23, Florida Statutes

(2008). The motion was granted.

A formal hearing was held, as scheduled, on December 2 and

3, 2008. Petitioner presented the testimony of Gwendolyn

Johnson, Angelette Green, Andrew Binns, Kimberly Desjarlais,

David Shore, Angela Jones, Susan Miller, and Arthur C. Johnson.

Petitioner's Exhibits 1, 2, 6, 8, 9, 11, 12, 13, 17, 30, 31, 36,

38, 45, 47, 48, 50-53, 57, 61-64, 66-68, 80, 92, and 100 were

received into evidence.

Respondent presented, in addition to her own, the testimony

of Marcia Andrews, Michelle Ertel, Marisol Ferrer, Jack

Thompson, and Clarence Freeman. Respondent's Exhibits 1-11, 14,

16, 17, 18, 20, 24-29, 32, 33, 39, 43, 46, 47, 48, 50, 60, and

61 were received into evidence.

The four-volume transcript was filed on January 7, 2009.

On January 27, 2009, Petitioner's Unopposed Motion for Extension

of Time for Filing Proposed Recommended Orders (PROs) was

granted, and accordingly, Petitioner and Respondent filed their

PROs on February 13, 2009.

FINDINGS OF FACT

1. Petitioner, Palm Beach County School Board (the Board

or Petitioner), operates, controls, and supervises all public

schools within the Palm Beach County School District (the

District), as authorized by Subsection 1001.32(2), Florida

Statutes (2008).

2. The District School Superintendent, Dr. Arthur C.

Johnson (Superintendent Johnson) is responsible for the

administration, management, and supervision of instruction in

the District, as provided in Subsection 1001.32(3), Florida

Statutes (2008).

3. Respondent, Dr. Gwendolyn Johnson (Dr. Johnson or

Respondent) was the principal at Independence Middle School

(Independence) during the 2007 to 2008 school year. In her

thirty-five years with the District, Dr. Johnson was a principal

for eight years, an assistant principal for eleven and a half

years, a guidance counselor for approximately nine years, and,

before that, an elementary and high school occupational

specialist.

4. At Independence, Respondent's assistant principals were

Kathleen Carden, Martest Sheffield, and Scott Duhy. Although

the projected enrollment was 1174, not the minimum number of

1201 required to justify having a third assistant principal,

Dr. Johnson requested and, on May 15, 2007, received approval to

keep the third assistant principal, Mr. Duhy, subject to

reaching or exceeding the required enrollment by the time the

count of students was taken on or about the eleventh day of

school in the fall. The increase over the projection was

possible because Independence was the 2007 receiving school for

students whose parents transferred them from D- or F-rated

schools under No Child Left Behind Act. For the 2007-2008

school year, Dr. Johnson assigned primary responsibility for

maintaining a count of the student population to another one of

the assistant principals, Dr. Carden.

5. In addition to determining the number of assistant

principals, the enrollment count is used by the District to

determine other staffing, including the number of teachers, and

guidance counselors assigned to each school.

6. Attendance at Independence was reported by teachers

each school day on bubbled attendance sheets. The sheets were

scanned each day and the data stored in a computer program

called the Total Education or Resource Management System

(TERMS). The sheets were returned to the teachers who used them

to record attendance for a two-week period before signing and

submitting them, and receiving new computer-generated biweekly

attendance scan sheets.

7. On August 23, 2007, the District notified all

principals, including Dr. Johnson, by memorandum (Bulletin # P-

12519-CAO/COO/FO/FTE), that any student who had never attended

any period since the first day of school must have a withdrawn

code entered into the TERMS program by August 27, 2007.

Dr. Johnson e-mailed the Bulletin to her administrative staff

and convened a meeting of that group to review it. Her

secretary also e-mailed a reminder of the requirements to the

staff on August 27, 2007.

8. Teachers reported students who never attended school

from the beginning of the year, the so-called "no-shows," by

making handwritten notes or by drawing lines through the

student's name on the attendance sheets, expecting those names

to be removed from their rosters. Students who never showed up

were not bubbled absent on the attendance sheets. A student

aide in the student services office scanned the sheets, so the

school's data processor, Angela Jones, did not see the teacher's

notes and make changes in the computer.

9. Once teachers kept getting biweekly attendance sheets

with the names of no-shows and transfers on them, they started

e-mailing or otherwise notifying Ms. Jones who began to keep a

running list of no shows and transfers. Ms. Jones was not

allowed to enter the withdrawal code in TERMS until authorized

to do so by either Dr. Johnson or Dr. Carden, as shown by their

e-mails. Rather than following the instructions in Bulletin

# P-12519 to withdraw all no-shows by August 27, 2007, no-shows

were treated like transfers and were not withdrawn until the

student's new school requested their records.

10. Dr. Johnson's claim that she was not aware that

procedures outlined in the District's Bulletin of August 23,

2007, were not being followed by Ms. Jones and Dr. Carden, is

not credible. She was present at the meetings in her office and

her conference room, well after the August deadline, during

which Ms. Jones continued to receive instructions to wait for

approval to make withdrawals.

11. On August 31, 2007, the District notified all

principals, including Dr. Johnson, by memorandum (Bulletin # P-

12542-CAO/COO) that the District's enrollment count day was

September 7, 2007, and that the count would be taken from TERMS.

Dr. Johnson sent an e-mail to all teachers to count students, as

directed in the Bulletin of August 23, by only including

students who had been in attendance at least one period since

school began on August 22, thereby excluding no-shows from the

count. Prior to 2007, this would have been the enrollment

number that the school faxed or e-mailed to the District. For

the first time in 2007, the number used by the District was the

number taken from TERMS summary enrollment screen that included

no-shows at Independence. The District also relied on that data

for its Full Time Equivalent (FTE) survey and report to the

State Department of Education (DOE). The FTE count is used to

determine per pupil funding by the State.

12. The actual number of students at Independence on

September 7, 2007, was 1188 but the number taken from the TERMS

database and reported was 1214, a twenty-six student discrepancy

that was later, after an audit, reduced to twenty-four. In

October 2007, Dr. Johnson falsely verified the accuracy of the

FTE survey that was, subsequent to the audit, determined to be

an over-count of 23 students.

13. Dr. Johnson testified that she verified the accuracy

of the count relying on the work of Dr. Carden, Ms. Jones,

Exceptional Student Education Coordinator Carol Lee, and ESOL

Coordinator Ann Costillo. She denied attempting to fraudulently

inflate the number to gain or maintain resources allocated by

the District, but she knew there was a difference in the numbers

based on a September report from Dr. Carden. She also knew

that, if the teachers followed her instructions regarding how to

count students, the "actual" number of 1214 from TERMS, written

in by Dr. Carden, had to be incorrect.

14. TERMS data also was uploaded to another program called

Grade-Quick. When it was time to give grades at the end of nine

weeks, Ms. Jones no longer had the ability to alter the rosters

and teachers were required to give a grade to each student on

their roster.

15. David Shore was the Grade-Quick technical support

person at Independence. At the suggestion of Dr. Johnson, he

sought advice from the District's technical support person,

Bruce Roland, who told him to have teachers give each no-show

student a grade of "F" to avoid an error code. The uploaded

grades for students who did not attend Independence, according

to Mr. Roland, would be deleted from the District's mainframe.

16. Fearing other consequences of giving "Fs," including

the possibility of generating letters to parents whose children

did not attend Independence, and doubting Mr. Shore's advice

because he was relatively new in his position, some teachers

refused to give "Fs" to no-shows.

17. After discussions with Dr. Johnson, Mr. Shore

instructed teachers to give a grade of "C" instead and to be

sure also to give a conduct grade. One teacher apparently found

a way to give a conduct grade, but no letter grade, to students

who were not enrolled in her class and to somehow avoid a

computer error code.

18. Some time during the fall semester, anonymous

complaints concerning the enrollment at Independence were made

to the State Auditor General's Office, who referred the matter

to an auditor in the District's office.

19. In December 2007, the audit confirmed that the count

at Independence was incorrect largely because no-shows and

withdrawals were not withdrawn timely from the computer in TERMS

before the District's initial count on August 27, 2007; before

the District's eleven-day count on September 7, 2007; nor before

Dr. Johnson twice verified the accuracy of the FTE count in

October 2007.

20. Dr. Johnson made no effort to make corrections, after

she admittedly was aware of the errors in October, November, and

December. Dr. Johnson blamed teachers who were unprofessional,

racist, and disgruntled over her more strict adherence to the

attendance rules for teacher planning and professional

development days, and over proposed spending of A-plus money.

She testified that they deliberately failed to bubble no-shows

as absentees. That assertion contradicts the testimony of her

witness that the proper procedure was followed by teachers who

drew lines through the names of no-shows rather than bubbling

them as absent. It also contradicts the instructions she gave

in a memorandum to teachers, on October 5, 2007, telling them to

write codes next to students' names on their rosters, NS for no-

show, WD for withdrawn - If a student was present at least one

day..., T for transfer, and A for add. Her memorandum instructs

teachers to give the information to Ms. Jones on October 11,

2007. Ms. Jones said she did look at rosters for FTE reporting

and she did make corrections. She too says her count was

accurate at the time unless teachers withheld information. The

teachers' rosters were maintained and, from a review of the

class rosters, the auditor concluded that the error was made in

not correcting TERMS to comply with teachers' reports.

21. Dr. Johnson also blamed her supervisor, Marisol

Ferrer, for sending a less experienced manager, Joe Patton, to

attend a meeting, on October 11, 2007, with her of the Employee

Building Council, a group that included some teachers who were

antagonistic towards Dr. Johnson. It is true that only later

did Mr. Patton recall that, after the meeting and after

Dr. Johnson left, some of teachers told him there were problems

with the student count at Independence. At the time, however,

Mr. Patton did not tell Ms. Ferrer or Dr. Johnson about the

comments. Dr. Johnson testified that, had she been told after

that meeting on October 11th about the problems, she could have

corrected the numbers before she submitted her verification of

accuracy. She did know that Dr. Carden showed her two sets of

numbers on September 7, 2007. Although she testified that she

believed the fluctuations were normal because students come and

go during the day for doctor's appointments or for other

reasons, Dr. Johnson took no further steps to determine if that

was in fact the cause of the discrepancy.

22. After Dr. Johnson and Dr. Carden instructed Ms. Jones

to begin making withdrawals after the October FTE report, some

of the withdrawals were backdated showing the no-show students'

withdrawal dates as the first day of school, August 22, 2007.

The District submitted corrections to DOE before the deadline

for incurring penalties, ultimately reducing the FTE count at

Independence by 23 students.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case, pursuant to Sections 120.569 and 120.57, Florida Statutes

(2008).

24. Respondent's assertion that Petitioner has stipulated

that it has the burden of proof by clear and convincing

evidence, based on the Notice of Twenty (20) Day Suspension that

states "[t]he recommendation is based on clear and convincing

evidence," is rejected as not binding in this proceeding.

Respondent also relies on the decision in, among other cases

involving the imposition of penalties, McKinney v. Castor , 667

So. 2d 387 (Fla. 1st DCA 1995), involving the suspension of a

school administrator's teaching certificate. The court held

that:

The proceeding before the Commission, which

involved the potential revocation of

McKinney's license, was penal in nature.

The Commission was required to prove the

charges by clear and convincing evidence.

Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

Id. at 388.

25. Petitioner relies, among others, on the decision in

Dileo v. School Board of Dade County , 569 So. 2d 883 (Fla. 2d

DCA 1990), in which the court distinguished between revocation

and termination, as follows:

It is settled in Florida jurisprudence that

the standard of proof required in teacher

license revocation cases is clear and

convincing evidence. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987). Although not as

clearly settled in Florida, there is

considerable authority elsewhere, as well as

implicit state case law authority, that the

lesser standard of preponderance of the

evidence is applied in teacher dismissal

cases. In Ferris v. Austin , 487 So. 2d 1163

(Fla. 5th DCA 1986), the court held that

there was competent and substantial evidence

to support the findings contained in the

hearing officer's recommended order,

stating: Nowhere did the hearing officer

conclude that the standard of evidence for

dismissal of a teacher was anything other

than that of preponderance of the evidence.

It is apparent from reading the recommended

order that the hearing officer concluded

that the evidence, pursuant to any standard,

supported Ferris and not the School Board.

Id . at 1167. It may be inferred from the

above language that the hearing officer's

findings would have been upheld by the

appellate court by a preponderance of the

evidence standard.

Id. at 884.

26. Based on the fact that Respondent could have been

terminated, as originally recommended, by the lesser standard,

but was not at risk of losing her license, it follows that

Petitioner has the burden of establishing by the preponderance

of the evidence that Dr. Johnson has violated the policies and

rules, as charged in the Petition, and that her actions warrant

her suspension without pay for twenty days.

27. Respondent is charged with misconduct and

unprofessional conduct for violating School District Policies

1.013 and 1.014, Florida Administrative Code Rules 6B-1.001(3)

and 6B-1.006(4)(b), (5)(a), and (5)(h), and School Board

Bulletins #P-12542-CAO/COO-Count Day and Class Size Reduction

Review, and #P-12519-CAO/COO-Florida Department of Education

Student Enrollment Procedures.

28. Section 1012.22(1)(f), Florida Statutes (2008),

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.

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

proceeding, Respondent was employed under a professional

services contract. Subsection 1012.33(4)(c), Florida Statutes

(2008), provides in pertinent part:

(c) Any member of the district

administrative or supervisory staff and any

member of the instructional staff, including

any school principal, who is under

continuing contract may be suspended or

dismissed at any time during the school

year; however, the charges against him or

her must be based on immorality, misconduct

in office ...

30. Florida Administrative Code Rule 6B-4.009(3) provides

the following definition:

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.

31. Respondent was charged with violating Florida

Administration Code Rule 6B-1.001(3) of the Code of Ethics of

the Education Profession in Florida, by specifically not being

(a)ware 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 achieve and sustain the highest

degree of ethical conduct.

32. The evidence does not support a conclusion that

Respondent was not aware of the importance of trying to maintain

the respect and confidence of her colleagues. In fact, it

appears that she sought support in trying to control and diffuse

the behavior of disgruntled teachers.

33. Respondent was charged with violating Florida

follows:

(4) Obligation to the public requires

that the individual:

* * *

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(h) Shall not submit fraudulent

information on any document in connection

with professional activities.

34. By demonstrating that Respondent contradicted or

allowed her staff not to comply with directions to enter

withdrawal codes as required by Bulletin P-12519-CAO/COO/FO/FTE,

the Petitioner demonstrated by a preponderance of the evidence

that Respondent violated the Florida Administrative Code Rule

6B-1.006(4)(b).

35. By establishing that Respondent failed to adequately

supervise and resolve discrepancies before the count day

established in Bulletin #P-12542-CAO/COO, Petitioner proved by a

preponderance of the evidence that Respondent violated Florida

Administrative Code Rule 6B-1.006(5)(h).

36. School District Policy 6Gx50-1.013 describes the

responsibilities of school district personnel and staff, as

follows:

It shall be the responsibility of the

personnel employed by the district school

board to carry out their assigned duties in

accordance with federal laws, rules, state

statutes, state board of education rules,

school board policy, superintendent's

administrative directives and local school

and area rules.

37. School Board Policy 6GX50-1.014 describes the

responsibilities of principals, as follows:

1. The principals' responsibilities and

duties are as stated in the appropriate

federal laws and rules, Florida statutes,

state board of education rules, and school

board policies, and as delegated herein.

The principal shall be the administrative

and supervisory instructional leaders of the

school, and shall be responsible for the

policies of the school board as directed by

the superintendent.

2. The principal shall assume

responsibility for the leadership of the

school staff by providing guidance and

assistance in he implementation of the

district's curriculum. The management of

the school plant and of the financial

affairs of the school shall be among the

prime responsibilities of the principal.

3. The duties of all personnel at a

school center shall be prescribed by the

principal

4. Pursuant to § 231.085, F.S., the duties

of principals may be assigned by the

superintendent and shall include, but not

limited to:

a. Administrative responsibility,

instructional leadership in implementing the

Sunshine State Standards and the overall

educational program of the school to which

the principal is assigned, submission of

personnel recommendations to the

superintendent, administrative

responsibility for records and reports, and

administration of student suspension.

5. Principals shall serve on the school's

advisory council as provided by § 229.58,

F.S.

38. By proving that Respondent violated the some of the

Rules and policies, as charged, Petitioner has proved that she

committed misconduct in office, as that is defined in Florida

Administrative Code Rule 6B-4.009(3).

39. Petitioner also has the burden to prove that her

misconduct was "...so severe as to impair [her] effectiveness in

the school system." As established in 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 a teacher failed to follow School Board policy and

lost control of the students in his classroom. See also Castor

v. Gilbert , DOAH Case No. 93-0346, 1993 Fla. Div. Adm. Hear.

LEXIS 5551 (R.O. 11/16/93; F.O. 2/3/94) in which a teaching

certificate was suspended for three years, followed by a two-

year period of probation for submitting false attendance

records.

40. Respondent's loss of effectiveness is reflected in the

teachers' efforts to report her misconduct to the District,

their refusal to accept her suggestion that students who were

not enrolled at Independence should be given "Fs" for grades,

and their efforts, apparently successful in at least one

instance, to avoid giving any grade to withdrawn and no-show

students. Respondent effectively lost her leadership role in

the school system.

41. Considering her long, previously unblemished career as

an educator, and her standing in the community, the proposed

suspension of Respondent for twenty days without pay is

reasonable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law it is RECOMMENDED that the School Board of Palm Beach

County, Florida, enter a final order suspending Respondent for

twenty days without pay.

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

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of April, 2009.

COPIES FURNISHED :

Frederick W. Ford, Esquire

2801 PGA Boulevard, Suite 110

Palm Beach Gardens, Florida 33410

Sonia Elizabeth Hill-Howard, Esquire

Palm Beach County School District

3318 Forest Hill Boulevard, C-302

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School District

3318 Forest Hill Boulevard, C-302

West Palm Beach, Florida 33416-9239

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-2500

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-2500

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.