09-000157TTS Palm Beach County School Board vs. Kathleen Carden Status: Closed Recommended Order on Thursday, January 14, 2010.

Summary: Petitioner failed to prove any dishonesty on part of assistant principal who followed principal's directives, which violated school policies and resulted in inflated enrollment figures at their school.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-0157

)

KATHLEEN CARDEN, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida, on November 3, 2009.

The parties, attorneys for the parties, witnesses, and court

reporter participated by videoconference in West Palm Beach,

Florida.

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: Stuart Kaplan, Esquire

Kramer, Ali, Fleck, Hughes,

Gelb & Kaplan & Bornstein

6650 West Indiantown Road, Suite 200

Jupiter, Florida 33458

STATEMENT OF THE ISSUE

The issue is whether Petitioner has good cause to suspend

Respondent, an assistant principal, for ten days, without pay,

for misconduct and unprofessional conduct in reporting student

enrollments at her school.

PRELIMINARY STATEMENT

By Petition dated January 9, 2009, Petitioner alleged that

Respondent is an assistant principal at Independence Middle

School and was employed in this capacity in the 2007-08 school

year. The Petition addresses student counts taken in September

and October 2007 and states that the school provided overcounts

on these two occasions.

The Petition alleges that Respondent was responsible for

overseeing the student count and was aware of the inflated

numbers, as she had received emails from school staff informing

her that no-show students were appearing on school attendance

rosters. The Petition alleges that, before the October 2007

student count, teachers questioned the school's data processor

and guidance office about accounting for no-show students and,

after the October 2007 student count, teachers questioned the

"school's administration" about accounting for no-show students.

The Petition alleges that, after the October 2007 student count,

the "school's administration" informed teachers to assign such

students with a grade of "C."

The Petition recites various bulletins specifying the

correct procedure for counting students and accounting for no-

shows and alleges that the bulletins were "addressed to

Principals and shared with the management staff (including

Respondent)." The Petition alleges that these bulletins "were

not followed."

The Petition alleges that Respondent thus violated Florida

Administrative Code Rules 6B-1.001(3) and 6B-1.006(4)(b) and

(5)(a) and (h) and School Board Policies 1.013 and 1.014, as

well as Section 1003.23, Florida Statutes.

On August 29, 2008, the parties filed a Joint Stipulation,

which states, as Petitioner's position, that Respondent was

responsible for complying with the bulletins and failed to do

so.

At the hearing, Petitioner called seven witnesses and

offered into evidence 21 exhibits: Petitioner Exhibits 3, 4,

11, 13, 15, 16, 18, 19, 21, 22, 23, 29, 30, 31, 32, 33, 35, 44,

46, 49, and 52, which were all admitted. Respondent called one

witness and offered into evidence no exhibits.

The court reporter filed the Transcript on January 8, 2010.

The parties agreed not to file proposed recommended orders.

FINDINGS OF FACT

1. At the time in question, Respondent was an assistant

principal at Independence Middle School (IMS). She has been an

assistant principal in Petitioner's school district for ten

years and has been the assistant principal at IMS since 2003.

2. Toward the end of each school year, Petitioner plans

for the assignment of its approximately 170,000 students to

schools for the following school year. Assuming that each

student will be promoted and, where necessary, transferred to

the appropriate middle- or high-school, the planning exercise

initiates the process that culminates, during the summer, in the

creation of a school-specific class schedule for each student.

3. Based on these class schedules, each school circulates

among the teacher, during the ensuing school year, a biweekly

attendance sheet, so that each teacher may take attendance by

class. The biweekly attendance sheet contains bubbles to be

filled in by the teacher, so an automated scanner can transfer

the information from the sheet to a computer file.

4. In accordance with the practices of Petitioner, a

classroom teacher is not to mark a student as "absent" until he

first attends the class and then misses the class. A student

who has not yet attended a class is classified as a "no-show."

However, the biweekly attendance sheet lacks a bubble to

indicate "no show," so classroom teachers typically handwrite

the information on the sheet after the first two weeks of

school. At the time in question, a student assistant collected

the biweekly attendance sheets and fed them into the scanner,

and the handwritten information contained on the sheet could

easily be lost.

5. Enrollment data are kept on Petitioner's TERMS program,

which contains a wide range of information relevant to

Petitioner's operations. In the main office of each school, a

staffperson enters and updates enrollment data in TERMS. The

staffperson removes a student from a school's enrollment by

entering into TERMS the name of the new school that the student

is attending or by entering "DNE," meaning "did not enter," if

the student is a no-show, but the staffperson does not know what

school the student is attending. Until the staffperson enters

DNE, though, a no-show student--meaning a student who has never

appeared in his assigned classroom--would continue to be shown

as enrolled at the school to which he has been assigned the

previous summer.

6. During the fall of the 2007-08 school year, each school

in the Palm Beach County School District performed two student

counts. Mandated by Petitioner, the 11-day count, which took

place on September 7, 2007, allowed Petitioner, early in the

school year, to reallocate teachers and administers, among

individual schools within the district, based on enrollments.

Mandated by state law, the fall FTE count, which took place in

October 2007, allowed the Florida Department of Education (DOE)

to allocate funds, for the first half of the school year, among

the various school districts within the state.

7. By bulletin dated August 23, 2007, to all principals

and approved by the Superintendent, Petitioner's Chief Academic

Officer and Chief Operating Officer stated that DOE was

conducting a survey count on August 31 for enrollment. The

bulletin states: "Therefore, on Monday, August 27, 2007, any

student not in attendance from the first day of school, at least

one period, must be withdrawn. It is imperative that all

schools adhere to this directive. An accurate assessment of

student enrollment across the state may help mitigate budget

reductions." The bulletin reminds the principals: "a DNE

should be entered into [TERMS] for students whose current school

location is unknown. For students transferring out of state, to

another Florida school district, or private school, please enter

the appropriate withdrawn (WD) code."

8. By bulletin dated August 31, 2007, to all principals

and approved by the Superintendent, the Chief Academic Officer

and Chief Operating Officer stated that "Count Day" was

September 7, 2007, and the data was to have been taken "directly

from . . . TERMS" without any "self-reporting by schools." The

bulletin advises that personnel assignments within the district

would be made based on this information obtained from the

September 7 count. The bulletin notes that all student

enrollments and class schedules "must be accurately reported in

. . . TERMS." The bulletin discloses that, on September 14,

area superintendents would notify individual schools of

personnel adjustments based on the information obtained from the

September 7 count.

9. At IMS, for the 2007-08 school year, the principal was

Dr. Gwendolyn Johnson and the staffperson assigned the job of

entering enrollment data in TERMS was Angela Jones. Respondent

was one of three assistant principals at IMS. Among her other

duties, Respondent was responsible for creating student class

schedules during the preceding summer, ensuring that all class

conflicts were resolved at least one week prior to the start of

the school year, and distributing the schedules on the day prior

to the start of school.

10. At the start of the 2007-08 school year, Dr. Johnson

assigned to Respondent the responsibility for the 11-day count.

Due to the challenges of the task, eventually, Dr. Johnson and

two other assistant principals helped Respondent collect the

relevant data from different teachers. These four

administrators brought all of the data to Respondent's office

where they compiled the data.

11. The enrollment data from the 11-day count revealed 26

fewer students at IMS than were shown in TERMS. After the fall

FTE count noted below, an audit revealed that the actual

discrepancy was 24 students: 23 no-shows and one who had

withdrawn prior to the eleventh day of the school year.

Respondent reported this discrepancy to Dr. Johnson and stated

that it needed to be rectified. At this point, Respondent fully

discharged the responsibilities that Dr. Johnson had placed on

her, and this was the last involvement of Respondent in the

reporting of enrollment information to the district office or

DOE.

12. The 11-day count was correct, at least after the minor

correction required after the audit, and the TERMS data were

inflated. After learning of the discrepancy and despite the

August 23 and 31 bulletins that had been sent to her,

Dr. Johnson failed to take any action to correct the over-

enrollment contained in TERMS. Exacerbating the situation, the

subsequent audit revealed that someone at IMS "updated" TERMS

for 17 of the students shown in the computer as enrolled, but

never attending IMS, with inaccurate withdrawal dates after the

11-day count, implying, incorrectly, that the students actually

had been in attendance on the date of the 11-day count.

13. In the presence of Respondent, after the 11-day count,

Dr. Johnson directed Ms. Jones not to enter DNEs for no-show

students until Ms. Jones learned where the students were

attending school during the 2007-08 school year. The effect of

this directive from Dr. Johnson, which ignored the instructions

that she had received from the district office, was to maintain

inflated enrollment figures for IMS for an extended period of

time after the 11-day count. The practical effect of

Dr. Johnson's directive was to preserve an assistant principal

position that had been provisionally assigned to IMS and to

obtain an additional teaching position for IMS.

14. After Dr. Johnson instructed Ms. Jones to delay

updating TERMS, in the manner described in the preceding

paragraph, Respondent later repeated this directive of

Dr. Johnson to Ms. Jones. But no evidence suggests that

Respondent played any role in the formation of this IMS policy.

15. The fall FTE survey took place from October 8-12,

2007. The fall FTE survey numbers for Petitioner were drawn

from the TERMS data, which were inflated for IMS. The

subsequent audit revealed that, due to Dr. Johnson's directive

to delay updating TERMS, the student count at IMS was inflated

by 23 students: 21 no-shows and two who had withdrawn prior to

the FTE survey week.

16. As the first grading period approached, toward the end

of October, IMS teachers began to question what they were to do

about the 24 no-shows who were still shown as enrolled on TERMS,

but had never attended one day of school. Some of the teachers

settled on assigning Fs to the no-show students. This raised a

problem with the IMS policy to send a letter home to every

student who received an F in any course. When the guidance

counselor approached Respondent and asked whether the teachers

should send letters to the homes of the no-show students

receiving Fs, Respondent told her not to, but to talk to the

data-processing staffperson to see how this issue could be

resolved. The guidance counselor, who was not alleged to have

been involved with the scheme to inflate enrollments at IMS,

believed that Respondent's advice not to mail the letters was

proper to avoid "looking stupid."

17. On October 26, 2007, the data processing staffperson

sent an email to the teachers and administrators acknowledging

that TERMS would not accept an input to show an incomplete or

missing grade. In another email on the same date, the data

processor advised the teachers to give the no-show students a C

and to assign them a conduct score as well, although an F was

also "acceptable."

18. Fortunately, Petitioner learned that the TERMS

enrollment numbers were inflated in time to correct the FTE data

without incurring a financial penalty from DOE. Charging

misconduct in connection with the misrepresentations and

fraudulent statements that maintained inflated enrollment

numbers in TERMS for IMS, Petitioner proposed a 20-day

suspension without pay for Dr. Johnson and a five-day suspension

without pay for Ms. Jones. Petitioner later dropped the charges

against Ms. Jones, but the charges against Dr. Johnson resulted

in a formal administrative hearing in DOAH Case No. 08-3986,

after which Petitioner issued a final order on June 3, 2009,

finding her guilty and sustaining the penalty, although this

case is now on appeal.

19. Based on similar charges in this case, Petitioner has

proposed a 10-day suspension without pay for Respondent. In

contrast to the case against Dr. Johnson, this case does not

involve the person responsible for implementing district policy,

as set forth in the two bulletins, or the person who decided to

ignore this district policy. As IMS principal, Dr. Johnson

ordered her subordinates, including Ms. Jones and Respondent, to

implement her policy, which was to ignore district policy to

maintain an inflated enrollment at IMS. Repeating the policy,

as Respondent did to Ms. Jones, and helping to solve one of the

problems that this unsustainable policy presented, as Respondent

did when she told the guidance counselor not to send letters

home to the no-show students who received Fs, do not so much

represent marked departures from the honesty demanded of

educational professionals, as they represent the behavior

expected of subordinates to the principal.

20. The administration of a middle school requires strong

leadership, which is vested in the principal. Insubordinate

staff undermine this leadership and risk adverse job action for

their dissent. The facts of this case do not approach the point

at which the demands of professional honesty imposed on

Respondent override her obligation to conform to the directives

of her principal, who was placed in this position of authority

by Petitioner or the Superintendent. Respondent honestly

discharged her duties in connection with the 11-day count and

mentioned the enrollment discrepancies to Dr. Johnson, who

misled Petitioner and DOE by maintaining the inflated enrollment

numbers, even though she did not personally enter the data in

TERMS or solve every problem, such as letters to the homes of

phantom students, that her wrongful policy created.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

Fla. Stat.

22. Although Section 1012.33(1)(b), Florida Statutes,

provides that Respondent's contract shall allow dismissal for

"just cause," Section 1012.33(6)(b), Florida Statutes, provides

that Respondent may be dismissed or suspended only for

"immorality, misconduct in office, incompetency, gross

insubordination, willful neglect of duty, drunkenness, or being

convicted or found guilty of, or entering a plea of guilty,

regardless of adjudication of guilt, any crime involving moral

turpitude." The distinction is irrelevant in this case,

however.

23. Florida Administrative Code Rule 6B-1.001(3) provides:

Aware of the importance of maintaining the

respect and confidence of one’s colleagues,

of students, of parents, and of other

members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

24. Florida Administrative Code Rule 1.006 states, in

part:

* * *

(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.

* * *

25. Petitioner's School Board Policy 1.013(2) requires

administrative staff to ensure that district policies and state

and federal law are adhered to.

26. Petitioner's School Board Policy 1.014(1) establishes

the principal as the "administrative and supervisory

instructional leader. . . of the school and shall be responsible

for the policies of the school board as directed by the

superintendent."

27. Petitioner bears the burden of proving the material

allegations by a preponderance of the evidence. Dileo v. School

Board of Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990).

28. Petitioner has failed to prove the material

allegations against Respondent and thus has failed to prove any

ground for the proposed suspension.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order dismissing

the charges against Respondent.

DONE AND ENTERED this 14th day of January, 2010, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 14th day of January, 2010.

COPIES FURNISHED:

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3310 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406-5869

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

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

Stuart Kaplan, Esquire

Kramer, Ali, Fleck, Hughes, Gelb

Kaplan & Bornstein

6650 West Indiantown Road, Suite 200

Jupiter, Florida 33458

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.