09-002992TTS Palm Beach County School Board vs. Debra Dunaway Status: Closed Recommended Order on Friday, January 29, 2010.

Summary: Petitioner should terminate teacher who committed second violation of drug-free workplace policy. Teacher conceded to misconduct in office. Testing positive for cocaine when teaching third graders met requirements for exception to progressive discipline

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2992

)

DEBRA DUNAWAY, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on September 23, 2009, 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: Matthew Haynes, Esquire

Jeff Sirmons, Esquire

Johnson, Haynes & Miller, P.A.

The Barrister's Building

1615 Forum Place, Suite 500-B

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Petition dated May 29, 2009, and, if so, the penalty that

should be imposed.

PRELIMINARY STATEMENT

In a Petition dated May 29, 2009, the Palm Beach County

School Board ("School Board") requested that Debra Dunaway be

suspended without pay and terminated from employment with the

School Board on the basis of the following charges:

[F]ailure to exercise best professional

judgment, misconduct in office in violation

of School District Policies 1.013 and 3.96,

as well as Florida Administrative Code

[Rule] 6B-1.001, 6B-1006 and 6B-4.009, and

Florida Statutes Sections 112.0455 and

440.101, thereby precluding Respondent from

meeting the District minimum standards and

constituting just cause for suspension under

Florida Statutes Section 1013.33 and/or

Section 112.0455.

Ms. Dunaway timely requested an administrative hearing, and the

School Board forwarded the matter to the Division of

Administrative Hearings for assignment of an administrative law

judge. Pursuant to notice, the final hearing was held on

September 23, 2009.

At the hearing, the School Board presented the testimony of

Ms. Dunaway, Gail Pasterczyk, Alfredo Taulh, and Britoni Garson;

Petitioner's Exhibits 3, 4, 6, 14, 16, 19, 21, and 25 were

offered and received into evidence. Ms. Dunaway did not present

the testimony of any witnesses; Respondent's Exhibits 1 through

12 and 15 were offered and received into evidence.

The one-volume transcript of the proceeding was filed with

the Division of Administrative Hearings on November 6, 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 duty to operate, control, and supervise all

free public schools within the School District of Miami-Dade

County, Florida. Article IX, Florida Constitution; § 1001.32,

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

authority to discipline employees. § 1012.22(1)(f), Fla. Stat.

2. Ms. Dunaway has been a teacher with the School Board

since 1988. At the times pertinent to this proceeding, she was

employed under a professional service contract as a third-grade

teacher at Elbridge Gale Elementary School.

3. As a classroom teacher in Palm Beach County,

Ms. Dunaway's employment is subject to the collective bargaining

agreement between the School Board and the local teacher's

union.

4. Disciplinary action was taken against Ms. Dunaway prior

to the events giving rise to this proceeding. On April 18,

2007, the School Board issued a Written Reprimand for Violation

of School Board Policy 3.96, Drug- and Alcohol-Free Workplace,

after a drug test administered by the School Board in 2007

showed a positive result for cocaine. In the written reprimand,

Ms. Dunaway was advised that, if she failed to comply with

School Board Policy 3.96, a recommendation for termination of

her employment with the School Board would be issued. Pursuant

to the collective bargaining agreement, the written reprimand

was placed in Ms. Dunaway's personnel file.

5. Ms. Dunaway began using cocaine in 2003 as a result of

her feelings of devastation, humiliation, and embarrassment

after an ex-boyfriend sent nude pictures of her, via electronic

mail, to every employee of the school at which she was a

teacher.

6. After she tested positive for cocaine in the early part

of 2007, Ms. Dunaway requested and received assistance through

the School Board's Employee Assistance Program, and she stopped

using cocaine as a result of her successful completion in

November 2007 of an intensive program at the Gratitude House

7. Ms. Dunaway was transferred to Elbridge Gale Elementary

School in August 2008. Ms. Dunaway had a strained relationship

with the school principal, Gail Pasterczyk. Ms. Dunaway felt

that she was subjected to frequent, intense scrutiny by

Ms. Pasterczyk, and this caused Ms. Dunaway to feel

uncomfortable and increasingly anxious.

8. According to Ms. Dunaway, Ms. Pasterczyk conducted a

formal evaluation of Ms. Dunaway's teaching performance on

Thursday of the second week in February 2009, which was

February 12, 2009. Ms. Pasterczyk was very critical of

Ms. Dunaway and gave her a poor evaluation.

9. Ms. Dunaway was very upset about the poor evaluation

and, on Friday, February 13, 2009, she used cocaine for the

first time since November 2007. Ms. Dunaway admitted that she

took "lots of [cocaine]” but stated that she had "stopped on

Friday." 2

10. Ms. Dunaway returned to school the following Tuesday,

February 17, 2009, because Monday was a holiday. According to

Ms. Dunaway, she had a very bad toothache during the weekend and

arranged a dentist appointment for Tuesday afternoon. She was

very nervous and took Xanax, which had been prescribed for her

in February, to ease her anxiety. Ms. Dunaway claimed to have

taken a Xanax right before lunch on Tuesday and to have become

so "inebriated" from the Xanax that she doesn't remember

anything that happened after she noticed that she was slurring

her speech.

11. On Thursday, February 19, 2009, while Ms. Pasterczyk

was eating lunch in the teachers' dining room, several third-

grade teachers approached her and expressed their concern about

Ms. Dunaway's behavior during the morning and at lunch.

Ms. Pasterczyk went to Ms. Dunaway's classroom and observed

Ms. Dunaway standing at the front of the classroom, slurring her

words, saying inappropriate things in front of the class, and

using an overhead projector, unaware that the paper she had on

the projector was upside down until she was alerted to this by

her third-grade students.

12. Ms. Pasterczyk returned to her office and consulted

with Britoni Garson in the School Board's employee relation’s

office. Ms. Garcon sent Ms. Pasterczyk a Drug and Alcohol

Documentation of Observable Behaviors form by facsimile

transmittal, which Ms. Pasterczyk completed and sent back to

Ms. Garson by facsimile transmittal. On the form,

Ms. Pasterczyk noted that she had observed sudden changes in

Ms. Dunaway's behavior, emotional behavior, nervousness, slurred

speech, increased and/or loud talking, and hand tremors.

13. Ms. Garson reviewed the documentation submitted by

Ms. Pasterczyk and determined that there was reasonable cause to

subject Ms. Dunaway to a drug test. Ms. Garson contacted

Ms. Pasterczyk and told her that she was to go to Ms. Dunaway's

classroom and accompany Ms. Dunaway to her office, where they

would wait for the drug-test team to arrive.

14. Ms. Pasterczyk did as Ms. Garson directed, and the

drug test was administered to Ms. Dunaway at approximately

2:30 p.m. on Thursday, February 19, 2009. The results were

submitted to the School Board on February 25, 2009, and were

positive for cocaine and for benzodiazepines, the family of

drugs within which Xanax falls.

15. Cocaine is a mood-altering drug that raises a person's

tempo and makes them more animated. Xanax is a type of

tranquilizer that is prescribed for people who are nervous or

who cannot sleep, and it has a calming effect.

16. Cocaine stays in the body for two to three days, but,

by the fourth day after use, the results of a drug test would be

negative for cocaine, that is, the amount if cocaine would be

less than 300 nanograms per milliliter.

17. Ms. Dunaway met with Alfredo Taulh to discuss her test

results, and Mr. Taulh advised her that she could challenge the

results of the drug test within seven days; she did not do so.

18. The School Board conducted an investigation and, after

going through all of the pre-disciplinary steps required by the

collective bargaining agreement, the Superintendent of the Palm

Beach County school system issued a Notice of Suspension and

Recommendation for Termination from Employment dated April 24,

2009, advising Ms. Dunaway that he intended to recommend to the

School Board her suspension without pay and termination of

employment at the May 6, 2009, School Board meeting.

19. Article II, Section M of the collective bargaining

agreement governs the discipline of employees. Article II,

Section M of the collective bargaining agreement provides in

pertinent part:

1. Without 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.

2. All disciplinary action shall be

governed by applicable statutes and

provisions of this Agreement. . . .

* * *

5. Only previous disciplinary actions which

are a part of the employee's personnel file

or which are a matter of record as provided

in paragraph # 7 below may be cited.

6. Where just cause warrants such

disciplinary action(s) and in keeping with

provisions of this Section, and employee may

be reprimanded verbally, reprimanded in

writing, suspended without pay or dismissed

upon the recommendation of the immediate

supervisor to the Superintendent. Other

disciplinary action(s) may be taken with the

mutual agreement of the parties.

7. Except in cases which clearly constitute

a real and immediate danger to the District

or the actions/inactions of the employee

constitute such clearly flagrant and

purposeful violations of reasonable school

rules and regulations, progressive

discipline shall be administered as follows:

a. Verbal Reprimand With A Written

Notation . . .

b. Written Reprimand - A written

reprimand may be issued to an employee when

appropriate in keeping with this Section.

Such written reprimand shall be dated and

signed by the giver and the receiver of the

reprimand and shall be filed in the affected

employee's personnel file in keeping with

provisions of Article II, Section B of this

Agreement.

c. Suspension Without Pay . . .

d. Dismissal - An employee may be

dismissed (employment contract terminated or

non-renewed) when appropriate in keeping

with the provisions of this Section,

including just cause and applicable laws.

Summary

20. Based upon a consideration of all of the evidence

presented, the proof is sufficient to establish with the

requisite degree of certainty that, under the circumstance of

this case, the School Board's decision to terminate Ms. Dunaway

conforms to the progressive discipline provisions in Article II,

Section M 7., of the collective bargaining agreement.

Ms. Dunaway's action in ingesting large quantities of cocaine

that remained in her system when she reported for work

demonstrates a flagrant disregard of the School Board's policy

of ensuring a drug-free workplace, a policy with which

Ms. Dunaway was familiar as a result of the written reprimand

she received in 2007 for her first violation of the policy.

Ms. Dunaway's testimony that she did not ingest cocaine after

Friday, February 13, 2009, is rejected as not credible. The

drug test was administered on Thursday, February 19, 2009, and,

given that cocaine is entirely dissipated from the human body

within four days, Ms. Dunaway would have tested negative for

cocaine if she had not ingested any of the drug since the

previous Friday, six days, prior to the drug test. In order to

test positive for cocaine on Thursday, Ms. Dunaway must have

ingested cocaine on Monday, a school holiday, and she could have

ingested cocaine at any time between Monday and Thursday.

21. Ms. Dunaway attributed the positive test result for

benzodiazepine to the Xanax she had taken to calm her anxiety

about a dental appointment she had in the afternoon of Tuesday,

February 17, 2009. According to Ms. Dunaway, she took the Xanax

before lunch and, after realizing that her speech was slurred,

remembered nothing more about the afternoon. Ms. Dunaway may

have had a dental appointment on Tuesday afternoon, and she may

have taken Xanax at school, but it is clear from the context of

her testimony that Ms. Dunaway was referring to a lapse in

memory that occurred on the day on which the drug test was

administered, that is, on Thursday, February 19, 2009.

22. The inconsistencies in Ms. Dunaway's version of the

events surrounding her ingestion of cocaine and Xanax undermine

the credibility of her testimony as a whole and make it

difficult to credit her claim that she was not under the

influence of cocaine on the day of her drug test. Even if her

version of events is credited, the fact remains that she tested

positive for cocaine and for benzodiazepine on Thursday,

February 19, 2009. Regardless of whether her condition on that

day was the result of the cocaine in her system or of the Xanax

in her system or of the combination of drugs, it is reasonable

to infer that her presence in a third-grade classroom when she

was so impaired that she had no recollection of being there

constituted a real and present danger to the students in her

class.

CONCLUSIONS OF LAW

23. 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 (2009).

24. The School Board seeks to terminate Ms. Dunaway's

employment as a teacher as a disciplinary measure. Pursuant to

Article 11, Section M 1., of the collective bargaining

agreement, the School Board must prove by clear and convincing

evidence that it has just cause to take disciplinary action

against Ms. Dunaway, and it must prove that the penalty of

termination is appropriate under the collective bargaining

agreement.

25. Section 1012.33, Florida Statutes, sets out the

grounds on which instructional personnel on professional service

contracts may be disciplined and 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: misconduct

in office, incompetency, gross

insubordination, willful neglect of duty, or

conviction of a crime involving moral

turpitude.

* * *

(6)(a) Any member of the instructional

staff, excluding an employee specified in

subsection (4) [employees under continuing

contracts], may be suspended or dismissed at

any time during the term of the contract for

just cause as provided in paragraph (1)(a).

The district school board must notify the

employee in writing whenever charges are

made against the employee and may suspend

such person without pay; but, if the charges

are not sustained, the employee shall be

immediately reinstated, and his or her back

salary shall be paid. If the employee

wishes to contest the charges, the employee

must, within 15 days after receipt of the

written notice, submit a written request for

a hearing.

26. The only charge made by the School Board against

Ms. Dunaway that constitutes "just cause" for suspension or

dismissal pursuant to Section 1012.33(1)(a) and (6)(a) is

"misconduct in office." "Misconduct in office" is defined in

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

27. In paragraph 42 of the Respondent's Proposed

Recommended Order, Ms. Dunaway concedes that "[b]y testing

positive for cocaine, she committed misconduct in office, as

defined by Fla. Admin. Code (FAC) Rule 6B-4.009." Ms. Dunaway

is willing to accept as a disciplinary action suspension without

pay, but she takes the position that the termination of her

employment with the School Board for her second violation of

School Board Policy 3.96, Drug- and Alcohol-Free Workplace, is

not in accordance with the schedule of progressive discipline

established in the collective bargaining agreement.

28. Article 11, Section M 7., of the collective bargaining

agreement governing the School Board's discipline of employees

provides two exceptions to the requirement that the School Board

follow the progression of discipline set out in that section.

In accordance with the collective bargaining agreement, the

School Board can deviate from the progressive discipline

guidelines when the actions of an employee "clearly constitute a

real and immediate danger to the District" or when the actions

of an employee "constitute such clearly flagrant and purposeful

violations of reasonable school rules and regulations."

29. School Board Policy 3.96 was enacted to carry out the

Legislature's stated intent in Sections 112.0455, 440.101, and

440.102, Florida Statutes, that employees in the State of

Florida shall be drug-free and alcohol-free in the workplace.

It is a reasonable rule that prohibits a person from reporting

to work or remaining at work while under the influence of drugs

or alcohol. Based on the findings of fact herein, Ms. Dunaway

presented a real and immediate danger to her students on

Thursday, February 19, 2009, and was in flagrant disregard of

School Board Policy 3.96 after having been warned in the Written

Reprimand issued April 18, 2007, that a second violation of that

policy would "result in a disciplinary recommendation for your

termination of employment with the School District of Palm Beach

County." The School Board may terminate Ms. Dunaway's

employment; the collective bargaining agreement permits the

School Board to progress immediately to dismissal when the

teacher's conduct, as here, poses a real and immediate danger to

the students for whom the District is responsible and

constitutes a flagrant and purposeful violation of School Board

Policy 3.96.

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 sustaining the suspension

of Debra Dunaway without pay and terminating her employment.

DONE AND ENTERED this 29th day of January, 2010, 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 29th day of January, 2010.

ENDNOTES

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

2008 edition unless otherwise indicated.

2 / Transcript at page 77. Although Ms. Dunaway provided this

information during the School Board's direct examination of

Dr. Taulh, Ms. Dunaway had previously been placed under oath and

her remarks are part of the evidentiary record of this case.

COPIES FURNISHED:

Matthew E. Haynes, Esquire

Johnson, Haynes & Miller, P.A.

241 Almyra Drive

Lake Mary, Florida 32746

Vicki L. Evans-Pare, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Jeffrey Scott Sirmons, Esquire

Johnson, Haynes, & Miller

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406-5869

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

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.