09-003557TTS Sarasota County School Board vs. Brian Berry Status: Closed Recommended Order on Wednesday, January 27, 2010.

Summary: Respondent subject to progressive discipline for multiple incidents of failure to comple IEPs and lesson plans. The incident on March 17, 2009, was a flagrant violation, sufficient for just cause to terminate. Recommend Respondent`s termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-3557

)

BRIAN BERRY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter before Daniel M.

Kilbride, Administrative Law Judge of the Division of

Administrative Hearings (DOAH) on November 20, 2009, by video

teleconference between Sarasota, Florida, and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Hunter W. Carroll, Esquire

Matthews, Eastmoore, Hardy

Crauwels & Garcia, P.A.

1777 Main Street, Suite 500

Sarasota, Florida 34236

For Respondent: Brian Berry, pro se

6409 Glen Abbey Lane

Bradenton, Florida 34202

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent’s

employment as a teacher, for alleged violations of various

School Board rules and policies, as outlined in the

Superintendent’s letter to Respondent, dated June 15, 2009.

PRELIMINARY STATEMENT

By certified letter, the Superintendent of Sarasota County

School District notified Respondent that probable cause existed

to terminate Respondent’s employment and that a recommendation

to that effect would be made to Petitioner. Respondent timely

filed a request challenging the decision to terminate his

employment, and this matter was referred to DOAH for a formal

hearing.

Prior to final hearing, Petitioner and Respondent executed

two separate stipulations. At the final hearing, the

undersigned confirmed that Respondent did admit each of the

stipulations. With Respondent’s affirmative response, official

recognition of these stipulations was taken. These stipulations

constitute findings of fact which have been incorporated into

this Recommended Order.

At the final hearing, Petitioner called five witnesses:

Aisha Holmes, a former teacher at Booker Middle School (the

“School”); Cindy Lowery, the Exceptional Student Education

School; Joe Bazenas, the principal at the School; and LaTonya

Brooks, a former teacher at the School. Petitioner offered

Exhibits 1-11, including all subparts of each exhibit, each of

which, including all subparts, were received into evidence.

Respondent testified on his own behalf and called two other

witnesses: Patricia Goodwin, a teacher at the School, and Jo

Anne Townsend, the director of human resources for the Sarasota

1 and 2 were admitted into evidence.

The two-volume Transcript of the final hearing was filed

with DOAH on December 11, 2009. Petitioner and Respondent

timely filed their Proposed Recommended Orders, which have been

carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Petitioner is the School Board of Sarasota County, the

entity responsible for operating, monitoring, staffing, and

maintaining the public schools within Sarasota County, in

accordance with Part II, Chapter 1001, Florida Statutes (2009).

The School is a middle school operated by Petitioner.

2. Petitioner employed Respondent, Brian Berry, as a

teacher at the School for several years. Respondent taught

students with ESE designation. Respondent is an “instructional

employee” under the Instructional Bargaining Unit Collective

Bargaining Agreement between the Sarasota Classified/Teachers

2009, for the 2008-2009 year)(the “Collective Bargaining

Agreement”). Article XXV of the Collective Bargaining Agreement

governs disciplinary actions against teachers, including

Respondent.

3. The Collective Bargaining Agreement requires there to

be just cause for any discipline. Normally, the following

progressive discipline steps are administered: (1) verbal

reprimand; (2) written reprimand; (3) suspension and,

(4) termination. Following progressive discipline is not

required “in cases that constitute a real immediate danger to

the district or other flagrant violations.”

4. During the 2008-2009 school year, Respondent’s

classroom was one of four classrooms arranged in a quadrant

fashion around a center internal office that connects the four

classrooms to each other. Respondent’s room was in the

southwest quadrant. Holmes had the room in the northwest

quadrant. Brooks had the room in the southeast quadrant. Like

Respondent, Holmes and Brooks taught ESE students. Brooks and

Respondent shared a paraprofessional, Collins.

5. Bazenas became the School’s principal in April 2006,

and has been its principal since that time.

6. Before resorting to the progressive discipline system,

School administration routinely counsel employees on an informal

basis when there is a concern. Generally, the counseling occurs

as a conversation between the administrator and instructor.

This informal counseling is non-punitive. Administrators also

use Memorandums of Instruction to clarify expectations. A

Memorandum of Instruction is also non-punitive in nature;

however, failing to abide by the expectation contained in a

Memorandum of Instruction could warrant discipline.

7. Respondent’s prior disciplinary history includes:

a. Verbal Reprimand, dated December 17,

2007, for failing to monitor students.

b. Verbal Reprimand, dated January 19,

2009, for failing to submit student

attendance on 39 occasions during the 2008-

2009 school year through January 6, 2009.

c. Written Reprimand, dated January 20,

2009, for failing to follow three separate

Memorandums of Instruction concerning

posting student attendance and for failing

to report student attendance on January 7,

2009.

Individual Education Plans

8. During the 2008-2009 school year, Respondent was the

case manager responsible for drafting Individual Education Plans

(“IEPs”) for several of his students. Under federal law, IEPs

must be updated at least once each year. Failing to update an

IEP by the time the prior IEP becomes out of date means such IEP

is out of compliance. This jeopardizes ESE funding, which comes

from state and federal sources.

9. During the 2008-2009 school year, there was an ESE

liaison (Cindy Lowery) at the School who routinely and timely

reminded case managers, including Respondent, of their IEP

responsibilities, important deadlines, and steps necessary to be

taken by the case manager. At the beginning of the school year,

Lowery explained the procedures to case managers, including

Respondent. Respondent received numerous reminders prior to the

expiration of each IEP for which he was responsible. The

expectations relating to IEP completion were clear and known to

case managers, including Respondent, at all relevant times.

10. At all times during the 2008-2009 school year prior to

his being placed on administrative leave on March 17, 2009,

Respondent had the ability to complete in a timely manner each

IEP for which he was responsible. He also had access to all

materials and assistance necessary to timely complete each of

the IEPs.

11. During school year 2008-2009, Respondent was the case

manager and responsible for the IEPs of students A.M. (due

11/27/08; completed 12/1/08); J.G. (due 1/17/09; completed

2/25/09); U.S. (due 1/17/09; completed 2/25/09); J.C. (due

2/20/09; completed 2/25/09); N.C. (due 3/3/09; not completed

prior to date Respondent was placed on administrative leave on

March 17, 2009); B.B. (due 3/11/09; not completed prior to date

Respondent was placed on administrative leave on March 17,

2009).

Reporting Attendance

12. Teachers are required to take classroom attendance

each period and timely post that attendance into the School’s

computer program that tracks attendance. This expectation is

contained in the School’s staff handbook, which is developed and

reviewed annually by a shared-decision making team, composed of

administrators, teachers, and community members. Reporting

attendance each period is a safety and security matter.

Reporting attendance also assists with accountability for

funding purposes.

13. During the 2008-2009 school year prior to being placed

on administrative leave on March 17, 2009, Respondent failed to

report attendance in at least one period on: August 20, 21, 25,

26, 27, 29; September 3, 4, 9 - 12, 15, 16, 22, 26, 30;

October 1, 3, 7 - 9, 15, 16, 22, 23, 28, 29; November 6, 7, 12,

18, 20, 21, 25; December 4, 5, 10; January 6, 7; February 19,

24; and March 3, 4, 10, 13, and 16. In all but six of those

dates, Respondent failed to report attendance for multiple

periods.

14. On October 20, 2008, November 24, 2008, and January 7,

2009, administrators at the School provided Respondent with

Memorandums of Instruction reminding Respondent of the need to

submit attendance electronically each period.

FCAT Proctoring

15. On March 10 and 11, 2009, the FCAT was administered at

the School. Respondent was assigned to proctor students who

were permitted testing accommodations. Some permitted

accommodations included extended testing time and having

proctors read questions. Testing of these students occurred in

the School’s media center. Another ESE teacher, Aisha Holmes,

was also assigned to proctor similar students.

16. Proctors were instructed that they needed to sign-in

and sign-out upon entering and leaving the media center; that

they could not engage in personal reading; and that they needed

to actively supervise the students at all times.

17. A preponderance of evidence supports the finding that

Respondent engaged in the following activities contrary to his

duties as proctor:

a. Over the two-day proctoring session,

Respondent failed to sign-in and sign-out

every time that he took a break.

b. Respondent engaged in personal reading

and other non-proctoring activities when he

was required to be actively proctoring the

FCAT.

c. Respondent stood over student S.L.’s

shoulder for a time period exceeding two

minutes. While Respondent contends that he

was trying to determine if S.L. had

finished, S.L. had not finished.

Respondent’s actions were intimidating to

S.L.

d. On the second testing day, Respondent

fell asleep on a couch in the media center

for a period of time when he should have

been actively proctoring. Respondent

snored, causing a disturbance to the

students engaged in testing activities.

While the length of time Respondent slept

was in dispute, the evidence demonstrates

that it was considerably longer than a brief

moment as advanced by Respondent.

e. On the second day of testing, a student

spilled juice on that student’s reference

sheet. Respondent placed the reference

sheet in the microwave but did not monitor

the drying process. The microwave scorched

the reference sheet, resulting in a burnt

smell invading the testing area and causing

another disturbance to the students engaged

in testing activities.

Use of Video with No Learning Objective in Place

18. In February 2009, Respondent showed the movie “Happy

Feet” to his class. He concedes that he had no learning

objective in mind in showing this video. Although Respondent

explained that in his opinion, no learning could be accomplished

that day due to the death of a co-teacher’s fiancé, Respondent

conceded that he requested no assistance in addressing this

situation despite such assistance being available to him.

Lesson Plans

19. Teachers are required to prepare lesson plans at least

one week in advance. Teachers are also required to have the

lesson plan on their desk and available for review. The lesson

plan expectations are contained in the School’s staff handbook.

20. The lesson plans are the guiding document for

instruction, which requires teachers to give forethought as to

the content of their lessons. It is used by teachers to focus

their lessons, by administrators to ensure content aligns with

teaching objectives, and by substitutes in the absence of the

teacher.

21. It is undisputed that the School’s administration

repeatedly counseled Respondent to create and have lesson plans

available.

22. Respondent failed to have lesson plans completed

and available for the week of October 6, November 17, and

December 15, 2008, and January 5, January 20 and February 2,

2009.

February 3, 2009 Weingarten Hearing

23. On February 3, 2009, Bazenas and Respondent met in a

formal, noticed meeting to discuss Respondent’s failure to

complete IEPs for Students J.G. and U.S. That meeting also

addressed Respondent’s continued failure to comply with school

policy on maintaining lesson plans. It is undisputed that

Respondent failed to timely complete the IEPs for students J.G.

and U.S., and that he failed to comply with the lesson plan

requirement.

March 16, 2009 Weingarten Hearing

24. On the afternoon of Monday, March 16, 2009, Bazenas

and Respondent and others met in a formal, noticed meeting to

discuss: (1) Respondent’s failure to complete IEPs for students

N.C. and B.B. prior to their IEPs becoming out of compliance;

(2) the FCAT proctoring matters; (3) use of the video “Happy

Feet” with no learning objective; (4) continued failure to

comply with the lesson plan expectation; (5) tardiness on March

9, and March 10, 2009; and (6) use of the girls’ restroom. 1

25. It is undisputed that Respondent failed to complete

the IEPs for students N.C. and B.B. in a timely manner, and that

he used the video “Happy Feet” with no learning objective in

place. During the meeting, Bazenas presented Respondent with

the summary of Holmes’ observations of Respondent’s conduct

while proctoring the FCAT. Respondent conceded that he was

inattentive at times during FCAT proctoring and did fall asleep

for some period of time during the FCAT, although he disputes it

was for 45 minutes.

March 17, 2009, Confrontation

26. On the morning of Tuesday, March 17, 2009, Respondent

observations of Respondent during the FCAT. A student, whom

Holmes was tutoring, was present in Holmes’ room at the time.

Holmes was uncomfortable with Respondent’s insistence on

discussing the FCAT matter at that time in front of the student.

Holmes advised Respondent that she would talk to him later.

Respondent, however, persisted in continuing his challenge to

Holmes’ FCAT proctoring observations in front of the student.

27. At that point, Bazenas entered Holmes’s room. Bazenas

observed that the situation was “tense” and that Holmes was

backed into a corner of the room. Bazenas also observed that

the student that was present looked very uncomfortable.

28. At that point, Bazenas, in a reasonable voice,

requested that Respondent return to his own classroom to

supervise his students. Respondent immediately became upset and

began yelling at Bazenas, telling Bazenas not to interrupt him.

Respondent approached him and pointed his finger in Bazenas’

face.

29. At that time, Collins was in Brooks’ room. Collins

heard shouting coming from the direction of Holmes’ room.

Collins proceeded into the center office of the quad. She

observed Respondent shouting at Bazenas that he was a “liar” and

that Respondent would see Bazenas “in court.” Collins did not

hear Bazenas raise his voice. Collins was fearful of

Respondent; she had never seen Respondent act in that way. She

also testified that Bazenas looked fearful of Respondent.

30. Respondent then proceeded into his classroom and

Bazenas followed Respondent into the classroom. He put himself

between Respondent and his students, permitting Collins to

remove the students from Respondent’s classroom, taking them

into Brooks’ classroom.

31. Respondent continued with his emotional outburst

during this time. When Bazenas requested that Respondent leave

campus immediately, Respondent threatened Bazenas. Bazenas

subjectively believed that Respondent’s agitated behavior and

his statement to be a threat of violence. Respondent also

directed inappropriate comments to his students about Bazenas

during his outburst.

32. As Collins brought Respondent’s students into Brooks’

classroom, Collins was shaking and looked very fearful. After

all of Respondent’s students were in Brooks’ classroom, Brooks

locked the doors. Locking the doors is an unusual occurrence;

however, Respondent did leave campus voluntarily.

33. Respondent was immediately placed on administrative

leave. Shortly thereafter, a police officer went to

Respondent’s house to advise Respondent to stay away from

campus. Respondent complied with the request.

34. Respondent’s outburst on March 17, 2009, constituted a

real and immediate threat to the School administration, teachers

and students and was a flagrant violation of school policies and

the State Principles of Professional Conduct.

CONCLUSIONS OF LAW

35. DOAH has jurisdiction over the parties and the subject

matter of these proceedings, pursuant to Section 120.569 and

Subsections 120.57(1), and 1012.33(6)(a), Florida Statutes

(2008). 2

36. A teacher is an “instructional employee” as defined by

Subsection 1012.01(2), Florida Statutes.

37. The District’s superintendent has the authority to

recommend to Petitioner that instructional employees be

suspended or terminated from employment. See § 1012.27(5), Fla.

Stat. Petitioner has the authority to suspend or terminate

instructional employees. See § 1012.22(1)(f), Fla. Stat.

38. The standard for termination of a member of the

instructional staff subject to an annual or continuing contract

is just cause, including, but not limited to, misconduct in

up to and including termination, is not limited to the list of

offensive conduct set forth in Section 1012.33, Florida

Statutes. Dietz v. Lee County School Board , 647 So. 2d 217

(Fla. 2d DCA 1994) (applying Section 231.36, Florida Statutes,

since renumbered as Section 1012.33, Florida Statutes).

39. Misconduct in office “is defined as a violation of the

Code of Ethics of the Education Profession as adopted in Florida

Administrative Code Rule 6B-1.001(3), and the Principles of

Professional Conduct for the Education Profession in Florida as

adopted in [Florida Administrative Code] Rule 6B-1006.” See

Fla. Admin. Code R. 6B-4.009(3).

40. Instructional personnel can only be disciplined for

“just cause.” See Collective Bargaining Agreement, Art. XXV,

A.2. Specifically, this provision provides that “[d]isciplinary

action may not be taken against a teacher except for just cause,

and this must be substantiated by sufficient evidence which

supports the recommended disciplinary action.”

41. “Just cause for discipline is a reason which is

rationally and logically related to an employee’s conduct in the

performance of the employee’s job duties and which is concerned

with inefficiency, delinquency, poor leadership, lack of role

modeling or misconduct.” Lee County School Board v. Hall , Case

No. 08-5409, paragraph 40 (DOAH June 29, 2009), citing State ex

rel. Hathaway v. Smith , 35 So. 2d 650 (Fla. 1948); see also

Brevard County School Board v. Sylvester Jones , Case No.

06-1033 (DOAH June 30, 2006) (Recommended Order adopted in

toto).

42. Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that

Respondent committed the acts alleged in the Superintendent’s

letter, dated June 15, 2009, and the reasonableness of the

proposed disciplinary action. See McNeill v. Pinellas County

School Board , 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Ferris v.

Austin , 487 So. 2d 1163 (Fla. 5th DCA 1986).

43. Petitioner established by a preponderance of evidence

that Respondent committed a flagrant violation within the

meaning of the Collective Bargaining Agreement by threatening

violence to Bazenas. Without resorting to the District’s

progressive discipline system, this threat of violence justifies

the termination of Respondent from employment. See Hillsborough

Community College v. Dismuke , Case No. 98-0199 (DOAH July 13,

1998), 1998 WL 866182 (a threat of violence is grounds for

termination even where, under progressive discipline,

termination is not the next discipline step). The comments made

by Respondent were a serious and flagrant contravention to

proper moral standards. As such, they violated the Code of

Ethics of the Education Profession in Florida. See Department

of Education, Education Practices Commission v. Ferrell , 10 FALR

4279 (1988).

44. As to Respondent’s conduct and comments as alleged

herein, the evidence has proven, by a preponderance of evidence,

a violation of the Principles of Professional Conduct for the

Education Profession in Florida. His conduct and comments to

the principal in front of his class, unduly and unnecessarily

exposed all of his students to embarrassment and/or

disparagement. It further created an atmosphere that was

harmful to learning and placed in jeopardy the students’ mental

health and safety. See Fla. Admin. Code R. 6B-1.006.

45. Even if Respondent had not engaged in the March 17,

2009, confrontation, he would still be liable for suspension

and/or termination under the District’s progressive discipline

system, as discussed below.

46. Petitioner established by a preponderance of evidence

that Respondent engaged in the conduct discussed during the

February 3, 2009, meeting, which warrants progressive

discipline; that Respondent failed to complete IEPs for students

J.G. and U.S.; and that Respondent failed to adhere to the

lesson plan expectations. Because Respondent had already

received a written reprimand under progressive discipline, these

acts, even if considered separately, would have resulted in a

suspension recommendation.

47. Petitioner established by a preponderance of the

evidence that Respondent engaged in certain conduct discussed

during the March 16, 2009, meeting, which warrants progressive

discipline. Specifically, Petitioner demonstrated that

Respondent failed to complete IEPs for students N.C. and B.B.

Respondent had 28 days and 36 days from the date of the

February 3, 2009, meeting to complete these IEPs for N.C. and

B.B., respectively, where Respondent again was counseled on the

need to complete IEPs timely. Additionally, Petitioner

demonstrated that Respondent’s actions and omissions during FCAT

proctoring constituted actionable misconduct. Finally,

Petitioner demonstrated that Respondent’s use of a video with no

learning objective constituted actionable misconduct. These

violations discussed during the March 16, 2009, meeting, each

independently would serve as grounds for suspension and/or

termination under progressive discipline.

48. Additionally, Respondent’s actions on March 17, 2009,

constitute misconduct which taken separately would serve as

further grounds for termination under progressive discipline.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Sarasota County School Board enter a

final order terminating the employment of Respondent from the

date Respondent was placed on unpaid leave of absence.

DONE AND ENTERED this 27th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 27th day of January, 2010.

ENDNOTES

1/ Petitioner has not pursued Respondent’s tardiness or alleged use

of the girls bathroom in this proceeding.

2/ All statutory references are to Florida Statutes (2008), unless

otherwise noted.

COPIES FURNISHED :

Hunter W. Carroll, Esquire

Matthews, Eastmoore, Hardy

Crauwels & Garcia, P.A.

1777 Main Street, Suite 500

Sarasota, Florida 34236

Brian Berry

6409 Glen Abbey Lane

Bradenton, Florida 34202

Lori White, Superintendent

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231

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

Department of Education

Turlington Building, Suite 1514

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.