08-005947TTS St. Lucie County School Board vs. Wendy Portillo Status: Closed Recommended Order on Tuesday, March 31, 2009.

Summary: Respondent is guilty of misconduct in office, and her employment should be suspended without pay for a year and contract should be changed from Professional Services Contract to an Annual Contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. LUCIE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-5947

)

WENDY PORTILLO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted on February 2 and 3, 2009, in Fort Pierce, Florida,

before Administrative Law Judge Claude B. Arrington of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Elizabeth Coke, Esquire

Leslie Jennings, Esquire

Richeson & Coke, P.A.

317 South Second Street

Post Office Box 4048

Fort Pierce, Florida 34948

For Respondent: David Walker, Esquire

Law Offices of David Walker, P.A.

2207 South Kanner Highway

Post Office Box 1829

Stuart, Florida 34995

STATEMENT OF THE ISSUE

Whether Petitioner, St. Lucie County School Board

(Petitioner or School Board) has just cause to discipline Wendy

Portillo's employment based on the conduct alleged in the

“Statement of Charges and Petition for One Year Suspension

Without Pay and Return to Annual Contract” and the appropriate

penalties, if any.

PRELIMINARY STATEMENT

Wendy Portillo (Respondent), a kindergarten teacher with a

professional services contract, taught at Morningside Elementary

School (Morningside) during the times relevant to this

proceeding. Morningside is a public school in St. Lucie County,

Florida. The conduct at issue occurred on May 21, 2008, and

involved one of Respondent’s students, who will be referred to

as Student 1 (to protect the student’s privacy) and the other

students in Respondent’s class.

By letter dated November 3, 2008, Michael Lannon,

Petitioner’s Superintendent of Schools, advised Respondent in

writing that based on conduct that will be discussed below, he

intended to recommend to the School Board that it suspend

Respondent’s employment without pay for one year from the final

School Board action, and that it reduce her contract status from

a Professional Services Contract (which is a tenured position)

to an Annual Contract (which is a non-tenured position.)

After advising Respondent of his intention to recommend to

the School Board that her employment be suspended without pay

for one year, his letter concluded with the following paragraph:

I will also be recommending to the State

Board of Education that they impose a one

year revocation of your teaching certificate

to be effective from the date of the School

Board’s action. Finally, I recommend that

after the one year suspension and when your

certificate becomes reinstated, that you be

returned to annual contract status. It is

also my intention to not place you in any

pre-school or with elementary children but

will place you in other grades, depending on

availability at that time and your being

qualified and certified.

Two of the matters set forth in the concluding paragraph of

Mr. Lannon’s letter of November 3, 2008, were not included in

the Petition and are beyond the purview of this proceeding.

First, any recommendation to be made by Mr. Lannon to the State

Board of Education (State Board) is within his discretion and

would not affect the substantial interests of Respondent unless

and until the State Board acted against Respondent’s

certification. If the State Board acted against Respondent’s

certification, she would then have recourse to challenge the

State Board’s proposed agency action pursuant to the provisions

of Chapter 120, Florida Statutes. Secondly, Mr. Lannon's

statement as to where he would assign Respondent should she

return to work for the School Board is advisory only and would

not be a part of the Final Order to be entered by the School

Board pursuant to this Recommended Order. 1

Petitioner’s investigative report discussed a complaint

from a parent of another student (referred to as Student 2) in

Respondent’s class (Petitioner’s Exhibit B, beginning on

page 9). The Petition did not allege facts pertaining to the

complaint from the parent of Student 2 and Petitioner did not

offer any competent evidence regarding that complaint at the

formal hearing. The undersigned has given no consideration to

the alleged complaint from the parent of Student 2 in reaching

the findings of fact and conclusions of law set forth in this

Recommended Order. Because this is a de novo proceeding, the

fact that the alleged incident was part of the investigative

report that Mr. Lannon considered, is irrelevant because the

recommendation set forth in this Recommended Order is based

solely on the competent evidence presented at the formal

hearing.

The facts underpinning the Petition pertain to Respondent’s

conduct on May 21, 2008. Paragraphs 1–17 of the Petition

contain factual allegations. Paragraphs 18, 19, and 20 are

premised on those factual allegations. Paragraph 18 of the

Petition alleged as follows:

18. That Wendy Portillo did violate

School Board Rule 6.301(3)(b) which provides

a non-inclusive list of infractions which

“warrant disciplinary action.”

(ix) Abusive or discourteous conduct or

language to supervisors, employees,

students, visitors, or vendors.

(xxix) Any violation of the Code of

Ethics of the Education Profession, the

Principles of Professional Conduct for the

Education Profession, the Standards of

Competent and Professional Performance, or

the Code of Ethics for Public Officers and

Employees.

(xxxi) Inappropriate or disparaging

remarks to or about students or exposing a

student to unnecessary embarrassment or

disparagement.

(xxxviii) Inappropriate method of

discipline.

Paragraph 19 of the Petition alleged the following:

19. That Wendy Portillo did violate the

Code of Ethics of the Education Profession

in Florida (Florida Administrative Code Rule

6B-1.001) and the Principles of Professional

Conduct for the Education Profession in

Florid (Florida Administrative Code Rule 6B-

1) [sic][ 2 ] which require that teachers must:

a. Seek to exercise the best professional

judgment and integrity (F.A.C. §6B-1001(2))

[sic];

b. Maintain the respect and confidence of

one's colleagues, of students, of parents,

and of other members of the community

(F.A.C. §6b-1.001(3) [sic];

c. Strive to achieve and sustain the

highest degree of ethical conduct (F.A.C.

§6B-1.001(3) [sic];

d. 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. (F.A.C. §6B-

1.006(3)(a)).

e. Shall not harass . . . and shall make

reasonable effort to assure that each

student is protected from harassment or

discrimination. (F.A.C. §6B-1.006(3)(g).

[sic]

The final paragraph of the Petition, paragraph 20, is as

follows:

20. That the foregoing acts as set forth

in this statement of charges and attached

report either individually or in combination

as set forth in this statement of charges

are for just cause under §1012.33(6)(a),

Fla. Stat. to warrant termination and or

[sic] a one year suspension of Wendy

Portillo’s employment with the St. Lucie

County School Board and a change of Wendy

Portillo’s continual [sic] contract to

annual status.

At its regularly scheduled meeting on November 18, 2008,

the School Board voted to suspend without pay Respondent’s

employment and to change her Professional Services Contract to

an Annual Contract upon the completion of that term of

suspension. Respondent timely challenged the proposed action of

the School Board and this proceeding followed.

At the final hearing, Petitioner presented during its case-

in-chief the testimony of Susan Ranew (Assistant Superintendent

of Schools for Human Resources); Michael Lannon; Billy Tomlinson

(Petitioner’s Director of Exceptional Student Education); Eric

Graff (a teacher at Morningside); and Patricia Gascoigne

(assistant principal of Morningside). Petitioner also presented

the rebuttal testimony of Ms. Gascoigne, Winifred Wynn (office

clerk at Morningside), and Marcia Cully (principal of

Morningside). Petitioner’s pre-marked Exhibits B, H, YYY, and

ZZZ were admitted into evidence. Petitioner’s Exhibit AAAA was

rejected for reasons stated on the record. Respondent testified

on her own behalf and presented the additional testimony of

Cindy Swertfeger (a friend and former colleague of Respondent);

Robin Marmitt (a literacy coach at Morningside); Tabitha

Williams-Johnson (a teacher at Morningside); Diane Zientz (a

data specialist employed by Petitioner and the parent of one of

Respondent’s former students); Lenita Weisfeld (the parent of

one of Respondent’s former students); and Cathy Oliver (the

chairperson of the Exceptional Student Education at

Morningside). Respondent offered 18 sequentially-numbered

exhibits, each of which was admitted into evidence.

Respondent’s Exhibit 10 was admitted under seal because it

contained confidential student information.

Unless otherwise noted, all statutory references are to

Florida Statutes (2008). References to rules are to the rules

in effect as of the entry of this Recommended Order. The

relevant statutes and rules have not changed since May 21, 2008,

the date the conduct at issue occurred.

A Transcript of the proceedings, consisting of three

volumes, was filed on February 25, 2009. Each party filed a

Proposed Recommended Order, which has been duly-considered by

the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the

constitutional entity authorized to operate, control, and

supervise the public schools in St. Lucie County, Florida.

Petitioner has entered into individual contracts and collective

bargaining agreements with the teachers it employs and has

adopted rules and policies that control the activities of its

teaching professionals.

2. At all times relevant to this proceeding, Respondent

was a teacher employed by Petitioner pursuant to a professional

services contract and assigned to teach kindergarten at

Morningside.

3. On May 21, 2008, Respondent was teaching kindergarten

in her classroom at Morningside. The door to Respondent’s

classroom is across a hall from the door of the school office.

4. Typically, kindergarten students are five or six years

old.

5. Student 1, a male, was one of 17 students in

Respondent’s class on May 21, 2008. Student 1 was assigned to

Respondent’s class in January 2008.

6. Shortly after his placement in her class, Respondent

asked Mr. Graff to help her with Student 1 because of Student

1’s behavior. Mr. Graff works in Morningside’s fourth grade

alpha class. The alpha program is designed to identify and

assist at-risk third grade students who are having difficulties

at home or at school. Mr. Graff has the assistance of a full-

time counselor and a full-time paraprofessional. Mr. Graff

agreed to help with Student 1 as needed. Student 1 came to

Mr. Graff’s classroom on approximately 12 occasions between

January and May 21, 2008.

7. In mid-February 2008, Respondent requested a Child

Study Team for Student 1, which is the first step in determining

whether a student meets the eligibility requirements for

services from Petitioner’s Exceptional Student Education (ESE)

program. This development is part of an on-going process. 3

8. The Child Study Team, of which Respondent was a member,

developed strategies designed to redirect Student 1’s behavior.

One of the strategies was a reward system utilizing tokens.

9. On May 21, 2008, Respondent’s kindergarten class began

at 8:20 a.m. At 9:00 a.m. Respondent’s kindergarten class,

including Student 1, went to a performance by the fifth grade

that ended at approximately 9:45 a.m. The students returned to

Respondent’s classroom at approximately 10:00 a.m.

10. At approximately 10:30 a.m., while she was teaching

her class, Respondent observed that Student 1 was off-task and

was being disruptive to the other students by flipping crayons

at his classmates and crawling under a table. Student 1 pushed

up on the table, where other students were trying to work.

Respondent attempted to redirect Student 1, but she could not do

so.

11. Respondent summoned Officer Black (the school resource

officer) to come to her room. Officer Black assisted in getting

Student 1 out from under a table and took him to the office.

12. After Officer Black had escorted Student 1 to the

school office, Ms. Gascoigne (the assistant principal) counseled

Student 1 as to appropriate versus inappropriate behavior.

Student 1 told Ms. Gascoigne that he realized what he had done

was wrong and that he wanted to say to Respondent that he was

sorry.

13. After keeping Student 1 in the office for

approximately 15 minutes, Ms. Gascoigne sent Student 1 back to

Respondent’s classroom.

14. There was a dispute in the record as to whether

Respondent sent a written referral to the office when Officer

Black escorted Student 1 to the office at approximately

10:30 a.m. The office did receive a written referral from

Respondent on May 21, 2008, pertaining to Student 1’s

misbehavior. The inference was that pursuant to School Board

Policy 5.33, which pertains to removal of students from a

classroom as opposed to a disciplinary referral of a student for

misbehaving in class, the office personnel should have detained

Student 1 for a longer period of time than 15 minutes if

Respondent had sent a written referral with him. The greater

weight of the credible evidence established that School Board

Policy 5.33 is inapplicable due to Student 1’s level of

disruption. Moreover, the greater weight of the evidence

established that Ms. Gasciogne did not receive the written

referral until the afternoon of May 21, 2008, after the

occurrence of the events at issue in this proceeding. When she

had Officer Black take Student 1 to the office at approximately

10:30 a.m. on May 21, 2008, Respondent did not ask Ms. Gascoigne

or anyone else in the office to detain Student 1 for a

particular length of time.

15. When Student 1 returned to her classroom, Respondent

was in a meeting area where the students were gathered for group

instruction. Respondent asked Student 1 why he had returned to

the classroom. Student 1 responded to the effect that

Ms. Gascoigne had sent him back. Referring to herself and to

the other students in her class, Respondent responded to the

effect that, “I don’t know if we are ready to have you back at

this time.”

16. After making that statement, Respondent directed

Student 1 to join her in front of his classmates. Respondent

asked Student 1 why he had done the things he had done earlier

that morning. Student 1 shrugged his shoulders. Respondent

told Student 1 that shrugging his shoulders was not an answer

and that he should use his words.

17. Three or four students began saying things about how

Student 1 had behaved. Respondent asked Student 1 to listen to

his classmates and asked him how what they were saying made him

feel. Referring to herself and to the other students,

Respondent stated that she did not think we are ready for you to

come back at this time. Respondent then announced that she was

going to poll the class as to whether Student 1 could rejoin

them. Respondent explained to the class that a poll was like

taking a vote. Respondent asked each of Student 1’s classmates

to verbally vote yes or no whether Student 1 should remain in

the classroom and gave each student the opportunity to explain

his or her vote. Respondent tallied the votes on the chalk

board. The final vote was 14 for removing Student 1 and two for

allowing him to remain. 4 Respondent thereafter sent Student 1

back to the office. Respondent made the ultimate decision to

exclude Student 1 from her classroom, but in making that

decision she considered the votes that had been cast by

Student 1’s classmates.

18. The reward system utilizing tokens was in place for

Student 1 on May 21, 2008. There was insufficient evidence to

establish that Respondent utilized the reward system or any

other strategy, including the use of Mr. Graff’s class, that had

been developed for Student 1 before sending him to the office on

the first occasion or before removing him from her class after

the classmates had cast their votes and made statements about

his behavior.

19. When Student 1’s mother came to pick Student 1 up from

school on the evening of May 21, 2008, she told Respondent that

she had embarrassed her son and that he was disabled and

autistic. Respondent apologized to Student 1’s mother.

Student 1 was with his mother when she made the quoted statement

to Respondent and when Respondent apologized. When asked by his

mother how he felt, Student 1 said he felt sad.

20. Except for her conduct on the May 21, 2008, incident

described above, Respondent has had a positive 12-year career as

a teacher at Morningside.

21. Respondent testified that at no time did she intend to

harm, embarrass, or do anything negative to the student.

Respondent further testified that she did not, at the time think

she was hurting anyone. She believed that she could show all of

her students that there are consequences to actions and to show

that actions may affect others. Respondent testified, credibly,

that early childhood education is her “passion” (as she termed

it at Transcript, Volume III, page 275, beginning on line 11).

22. Petitioner’s investigative report reflects (beginning

on page 13 of Petitioner’s Exhibit B) the following:

There is no evidence that Ms. Portillo’s

conduct was malicious or intended to cause

harm or embarrassment to Student 1.

However, there is a question as to whether

Ms. Portillo exercised the best professional

judgment during the incident under

investigation. . . .

23. Immediately following the incident of May 21, 2008,

Petitioner prohibited Respondent from returning to Morningside.

Petitioner assigned Respondent to the School Board office with

pay while Petitioner investigated the matter. On November 14,

2008, Mr. Lannon made his recommendation to the School Board.

The recommendation was that Petitioner suspend Respondent for a

period of one year dating from the School Board’s final order

and that her contract be changed from a Professional Services

Contract to an Annual Contract. At its meeting of November 14,

2008, the School Board suspended without pay Respondent’s

employment for a period of one year and voted to change her

contract from a Professional Services Contract to an Annual

Contract should she return to employment with the School Board. 5

24. The greater weight of the credible evidence

overwhelmingly established that Respondent’s conduct on May 21,

2008, described above is properly characterized as misconduct as

that term is generally understood.

25. As will be discussed below, Petitioner established

that Respondent’s conduct on May 21, 2008, violated the Code of

Ethics of the Education Profession in Florida and the Principles

of Professional Conduct for the Education Profession in Florida,

thereby violating the provisions of subsection (xxix) of School

Board Rule 6.301(3)(b), as alleged in paragraph 18 of the

Petition.

26. Petitioner established that Respondent’s misconduct on

May 21, 2008, violated subsection (xxxi) of School Board Rule

6.301(3)(b) as alleged in paragraph 18 of the Petition by

exposing Student 1 and the other students in her class to

unnecessary embarrassment or disparagement.

27. Petitioner established that Respondent utilized an

inappropriate method of discipline in removing Student 1 from

her class after the class vote, thereby violating subsection

(xxxvii) of School Board Rule 6.301(3)(b), as alleged in

paragraph 18 of the Petition.

28. Petitioner failed to establish that Respondent was

abusive or discourteous in violation of subsection (ix) of

School Board Rule 6.301(3)(b) as alleged in paragraph 18 of the

Petition.

29. Mr. Lannon, Ms. Ranew, Ms. Gascoigne, and Ms. Cully

are experienced educators with supervisory responsibilities.

Each opined that Respondent had violated the Code of Conduct for

the Education Profession and explained the reasons for those

opinions.

30. Petitioner established that Respondent failed to

exercise the best professional judgment on May 21, 2008, as

alleged in paragraph 19a of the Petition.

31. The alleged violation set forth in paragraph 19b will

be discussed below.

32. Petitioner failed to establish that Respondent’s

misconduct was unethical and, consequently, failed to establish

the violation alleged in paragraph 19c of the Petition.

33. Petitioner established that Respondent failed to make

reasonable effort to protect Student 1 from conditions harmful

to learning and/or to the student’s mental and/or physical

health and/or safety as alleged in paragraph 19d of the

Petition.

34. Petitioner established that Respondent failed to make

reasonable effort to protect Student 1 from harassment as

alleged in paragraph 19(e) of the Petition.

35. Petitioner has charged Respondent with “misconduct in

office.” There is a difference between the generally used term

Board has defined the term “misconduct in office” by Florida

Administrative Code Rule 6B-4.009(3), 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, 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.

36. While there can be no meaningful debate as to whether

Respondent's conduct should be characterized as “misconduct,”

there was a dispute as to whether Respondent’s effectiveness in

the school system had been impaired, thereby establishing that

Respondent was guilty of “misconduct in office” as alleged in

the Petition.

37. This incident received extensive coverage by the

local, national, and international press. Locally, Petitioner

received a high volume of written communications and telephone

calls in response to Respondent’s conduct. Some communications

supported Respondent’s conduct while others condoned

Respondent’s conduct. The communications condoning Respondent’s

conduct far outweighed the responses supporting her conduct. 6

Petitioner received requests from parents that Respondent not be

allowed to teach their students should she return to class.

38. In addition to the negative publicity and negative

communications generated by her conduct, Respondent’s principal

has lost confidence in her. Ms. McCully testified as follows in

response to questions from Petitioner’s counsel (Transcript,

Volume III, beginning at page 371, line 17):

Q. After the May 21, 2008, incident

involving Ms. Portillo, would you recommend

that she be hired as a teacher in your

school?

A. No, I would not.

Q. Why is that?

A. Personally, I feel that I would not

have that rapport, trust, with her and be

able to work with her after this.

39. Dr. Lannon testified as follows in response to

questions from Petitioner’s counsel (Transcript, Volume I,

beginning at page 106, line1):

Q. In your opinion, has Ms. Portillo’s

actions on May 21, 2008, resulted in a loss

of her effectiveness.

A. I believe so.

Q. How do you reconcile that with your

recommendation that she can go back to work

after a one-year suspension without pay?

A. I came to that with great pain.

I believe that the actions that Ms.

Portillo undertook actually rose to the

issue of termination. But also, in a sense

of fairness, Ms. Portillo is a twelve-year

employee who has contributed to the lives

and the well-being of children in St. Lucie

County.

My sense on this was that while there

is a price to pay – and I believe that the

action of not protecting children is

literally the most serious thing we can do

in a negative way – that her past career

would warrant a second chance, but not in

the environment in which she had willfully

created these series of steps leading to the

involvement of a particular child in what I

believe to be an embarrassing and

disparaging way and the involvement of the

class in a way that we may never know.

Q. Did you consider terminating

Ms. Portillo?

A. I did.

Q. And is it my understanding that you’re

saying the fact that she had twelve positive

years mitigated that decision.

A. Yes. That’s exactly correct.

Q. And that led you to the recommendation

that’s at issue?

A. That’s exactly right.

40. On cross-examination, Mr. Lannon testified in response

to questions by Respondent’s counsel (Transcript, Volume II,

beginning on page 149, line 25):

Q: And you’re of the opinion as you sit

here today, Mr. Lannon, under no

circumstances . . . that you would allow

[Respondent] to teach elementary school

children in St. Lucie County.

A. I would not put her in pre-K through

fifth grade. That’s the definition. So

that would be correct.

41. In his testimony at the formal hearing and in his

letter of November 3, 2008, Mr. Lannon described the mitigating

circumstances he considered in contemplating his recommendation

to the School Board. The following, taken from Mr. Lannon’s

letter, succinctly states those considerations:

I have also considered mitigating

circumstances.

1. You have had a long (12 years) and

positive career in St. Lucie County Public

Schools.

2. Your annual evaluations, conducted by

five Principals over 12 years are positive.

3. Behavior of young students, in groups

such as classrooms, is often difficult and

professionally demanding.

4. The official investigation states

“there is NO evidence that Ms. Portillo’s

conduct was malicious or intended to cause

harm or embarrassment . . . “ [Emphasis in

the original.]

42. Except for the conduct at issue in this proceeding,

Respondent has been an excellent, dedicated teacher during her

12-year tenure at Morningside. She has spent a considerable

amount of her personal time working on an extra-curricular

activity named Odyssey of the Mind. Many of the employees at

Morningside and parents of former students are supportive of

Respondent. As to those employees and parents, Respondent’s

reputation remains intact despite the negative publicity

regarding the conduct at issue. 7

43. The greater weight of the credible evidence clearly

established that Respondent’s conduct on May 21, 2008, has

impaired her effectiveness in the system.

44. Petitioner established that Respondent’s conduct on

May 21, 2008, constitutes “misconduct in office” within the

meaning of Florida Administrative Code Rule 6B-4.009 and,

consequently, constitutes grounds for the suspension of her

employment pursuant to Section 1012.33(6)(a), Florida Statutes,

which provides, in relevant part, that the employment of a

teacher with a professional services contract can be terminated

or suspended for just cause, which is defined to include

“misconduct in office” as defined by State Board rules.

45. Section 1012.33(4)(b), Florida Statutes, provides, in

relevant part, as follows:

(b) Any . . . member of the instructional

staff . . . may be returned to annual

contract status for another 3 years in the

discretion of the district school board, at

the end of the school year, when a

recommendation to that effect is submitted

in writing to the district school board on

or before April 1 of any school year, giving

good and sufficient reasons therefore . . ..

46. In explaining the rationale for his recommendations,

Mr. Lannon testified as follows in response to questions from

counsel for Respondent as to his recommended disposition of this

matter (beginning at Transcript, Volume II, page 133, line 15):

Q. What would happen in the one year that

would allow her, from the year that you’re

recommending that she be suspended to the

year that she, if your recommendation is

accepted, that she would come back to work

for the School Board, what would happen in

that year that would change the alleged loss

of respect and confidence in her colleagues

first?

A. It might not.

Q. Your same answer would be as it

relates to students?

A. Yes, sir.

Q. And the parents.

A. That’s correct. I have no knowledge

of how they would feel.

Q. So in essence, you’re allowing, you’re

recommending that a person that you’re not

sure would be respectful [sic] or confident

[sic] by teachers, students, parents, and

members of the community, you’re

recommending that that person still work for

the St. Lucie County School Board.

A. I’m allowing that the 12 years prior

to May 21, 2008, mitigated my thinking that

said this person is deserving of another

chance at some point in time.

Q. And this chance that you’re talking

about is not a chance of great risk or harm

if I follow your logical conclusion; is that

correct.

A. If you look at it more fully, you’ll

see that I would not allow her to teach at

that grade level in an elementary school

again. And there is a difference in the

ability of students to be able to discern

the words of adults as they age. And I’m

going to bank on the fact that the quality

that Ms. Portillo had previously shown,

absent her actions on that day, which I

believe to be premeditated and well thought

out, even though they were quick, would not

occur again.

47. There can be little doubt that Respondent has been

traumatized by the negative reactions to her misconduct. 8

Respondent and her family have suffered economically as a result

of her suspension. Respondent apologized to Student 1’s mother

and testified that she is remorseful.

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has

jurisdiction over the subject matter parties to this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

49. Because Petitioner seeks to suspend Respondent’s

employment for one year and does not involve the loss of a

license or certification, Petitioner has the burden of proving

the allegations in its Administrative Complaint by a

preponderance of the evidence, as opposed to the more stringent

standard of clear and convincing evidence. McNeill v. Pinellas

County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v.

School Board of Dade County , 571 So. 2d 568, 569 (Fla. 3d DCA

1990); Dileo v. School Board of Lake County , 569 So. 2d 883

(Fla. 3d DCA 1990).

50. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

51. Section 1012.33, Florida Statutes, pertains to

contracts between school boards and instructional staff,

supervisors, and school principals. Petitioner relies on

Subsections 1012.33(1)(a) and (6)(a), Florida Statutes.

Pursuant to these provisions, the employment of a teacher with a

professional services contract can be suspended or terminated

for just cause, which includes, relevant to this proceeding,

misconduct in office.

52. Petitioner established by the requisite standard that

Respondent is guilty of misconduct in office.

53. Mr. Lannon’s analysis of this matter is viewed by the

undersigned to be thorough and balanced. Mr. Lannon was correct

when he opined that the conduct at issue would have justified

the termination of Respondent’s employment. A one-year

suspension of Respondent’s employment is warranted by the

conduct at issue in this proceeding. The recommendation that

follows is for the one-year suspension period to begin to run as

of the date Respondent was suspended without pay on November 18,

2008. To have the period of suspension run as of the date the

School Board enters its Final Order based on this Recommended

Order unfairly penalizes Respondent for exercising her rights

pursuant to Chapter 120, Florida Statutes.

54. Section 1012.33(4)(b), Florida Statutes, provides that

a teacher’s Professional Services' Contract can be changed to an

Annual Contract on a written recommendation from the

superintendent made prior to April 1 of any school year “giving

good and sufficient reason” for the proposed action. The

evidence presented at the formal hearing, including Mr. Lannon’s

testimony, provides good and sufficient reason for the

recommendation pertaining to the change in Respondent’s contract

status. 9

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

adopting the Findings of Fact and Conclusions of Law contained

in this Recommended Order. It is further RECOMMENDED that the

final order uphold the suspension of Respondent’s employment for

a period of one year from November 18, 2008, and provide for the

change of her contract status from a Professional Services

Contract to an Annual Contract, contingent upon the availability

of a position for which Respondent is qualified and certified.

DONE AND ENTERED this 31st day of March, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

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 31st day of March, 2009.

ENDNOTES

1 / The responsibilities of the School Board and the

Superintendent relating to the assignment of instructional

personnel are set forth in Sections 1012.22 and 1012.27, Florida

Statutes, respectively.

2 / The correct reference is Florida Administrative Code Rule 6B-

1.006.

3 / As of May 21, 2008, no determination had been made as to

Student 1’s eligibility for ESE services. In November 2008,

Student 1 was determined to be eligible for ESE services under

the category autism spectrum disorder. The recommendation of

the Child Study Team following Student 1’s determination of

eligibility for ESE services is for Student 1 to be placed in a

general education classroom one hundred percent of the time and

that any needed services be provided to him in that setting. No

IEP has been formalized or implemented due to lack of parental

consent.

4 / As part of a math lesson, Respondent had previously taught

her class how to tally objects by “bundling” the tally marks

into groups of five. Respondent testified, credibly, that she

tallied the votes because it was an opportunity to review what

she had previously taught. Respondent had tallied the votes of

her students on various issues prior to May 21, 2008.

5 / The School Board’s action was part of a consent agenda. The

School Board approved Mr. Lannon’s recommendation without

specifying whether the suspension without pay would begin as of

November 14, 2008, or when the School Board entered its Final

Order following its consideration of this Recommended Order.

While there may be a question as to when Mr. Lannon recommended

the suspension without pay to begin, the School Board suspended

Respondent without pay on November 18, 2008.

6/ Mr. Lannon testified, credibly, that the communications he

had received or reviewed expressed the greatest level of concern

over Respondent’s conduct on May 21, 2008, than any other

incident he had seen in his forty-plus years in education.

7 / The testimony of the witnesses presented by Respondent has

been considered by the undersigned in reaching the findings and

conclusions set forth in this Recommended Order. Their

testimony is considered by the undersigned to be very supportive

of Respondent and to be very sincere.

8 / See Respondent’s testimony, beginning at Transcript, Volume

III, page 270, line 16.

9 / In reaching this conclusion, the undersigned has considered

that open questions exist as to where Respondent will be

teaching, as to the grade she will be teaching, and as to how

Respondent will react to being back in the classroom.

COPIES FURNISHED:

David Walker, Esquire

Law Offices of David Walker, P.A.

2207 South Kanner Highway

Post Office Box 1829

Stuart, Florida 34995

Elizabeth Coke, Esquire

Leslie Jennings, Esquire

Richeson & Coke, P.A.

317 South Second Street

Post Office Box 4048

Fort Pierce, Florida 34948

Michael Lannon, Superintendent

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947-5414

Dr. Eric J. Smith

Commissioner of Education

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

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.