09-005253TTS Miami-Dade County School Board vs. Jamillah Peters Status: Closed Recommended Order on Monday, June 21, 2010.

Summary: Petitioner demonstrated just cause to suspend Respondent workdays without pay for Misconduct in Office, Gross Insubordination, and violation of the School Board Rules for Responsibilities and Duties, and the Code of Ethics.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-5253

)

JAMILLAH PETERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

April 6, 2010, at video teleconferencing sites in Miami, and

Tallahassee, Florida, before Administrative Law Judge June C.

McKinney of the Division of Administrative Hearings, pursuant to

the authority set forth in Sections 120.569 and 120.57(1),

Florida Statutes (2009).

APPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Arianne B. Suarez, Esquire

Miami-Dade County School Board

Attorney' s Office

1450 Northeast Second Avenue

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause

to suspend Respondent for 30 workdays without pay?

PRELIMINARY STATEMENT

By letter dated September 10, 2009, Jamillah Peters

("Respondent" or "Peters") was notified that the School Board of

Miami-Dade County ("Petitioner" or "School Board") at its

scheduled meeting of September 9, 2009, took action to suspend

Respondent 30 days without pay for just cause including, but,

not limited to, gross insubordination and violations of School

Board Rules.

The Respondent elected to dispute the reasons for the

suspension. Respondent requested a formal proceeding, and the

matter was referred to the Division of Administrative Hearings.

No reason was given for Peters' suspension in the

September 10, 2009, letter, but the School Board filed a Notice

of Specific Charges with the Division of Administrative Hearings

on March 15, 2010, in which it charged Peters with misconduct in

office, gross insubordination, and violation of School Board

Rules 6Gx13- 4A-1.21 , Responsibilities and Duties, and 6Gx13- 4A-

1.213 , Code of Ethics.

At hearing, Petitioner presented the testimony of three

witnesses: Lucy Iturrey, Sandra Cue, and Kathleen John-

Louissaint. Petitioner's Exhibits numbered 1 through 47 were

admitted into evidence. Respondent testified on her own behalf

and offered no additional exhibits.

At the request of Petitioner, the undersigned took official

447.209; Florida Administrative Code Rules 6B-1.001, 6B-1.006,

and 6B-4.009; and School Board Rules 6Gx13- 4A-1.21 and 6Gx13- 4A-

1.213.

The proceedings were transcribed and the parties availed

themselves of the right to submit proposed recommended orders

after the filing of the transcript. The Transcript of the final

hearing was filed with the Division of Administrative Hearings

on April 30, 2010. Upon the granting of an extension to the

proposed recommended order filing deadline, both the Petitioner

and Respondent filed timely Proposed Recommended Orders, which

have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Petitioner 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. (2009). 1 Specifically, the School Board has the authority

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

2. Peters has been employed by Petitioner as a Special

Education Teacher for eight years. Her first two years of

employment as a full-time teacher were at Edison Park Elementary

School.

3. Peters has been assigned to Morningside Elementary

School ("Morningside") as a full-time Exceptional Student

Education ("ESE") teacher for approximately six years. She

remains employed at Morningside presently.

4. During the 2007-2008 and 2008-2009 school years,

Respondent worked as an ESE teacher dealing with kindergarten

and first grades. Even though Peters had a room, she went to

the classrooms of the students assigned to her to perform her

duties.

5. Peters' job duties and responsibilities included but

were not limited to developing IEPs, maintaining attendance and

grade records, keeping students records, participating in

various meetings and in-services, and performing work as

required or assigned by the supervising administrator or his/her

designee.

6. At all times relevant hereto, Respondent was provided

with an assigned class schedule.

7. During Peters' employment at Morningside from August of

2005 through March of 2009, Respondent was disciplined numerous

times for not complying with her job duties. Peters

repetitively failed to adhere to her class schedule; failed to

request administrative permission to leave the worksite; failed

to follow faculty sign in/out procedures; left the school site

during scheduled classroom work time; failed to complete student

IEPs; failed to keep student grading, attendance, and other

student records; and continually refused to obey the direct and

reasonable orders given by her supervisors, Morningside

Principal Ms. Kathleen John-Lousissaint ("Principal" or "John-

Lousissaint"), and Morningside Assistant Principal Ms. Sandra

Cue ("Assistant Principal" or "Cue"). 2

8. The School Board kept a record of the occurrences in

Peters' personnel file and went through all the required

procedures for disciplining Peters, including repetitive verbal

directives, approximately 47 written directives by memorandums,

numerous Conferences-for-the-Record ("CFR"), and ultimately

written reprimands after Respondent continuously refused to

comply with previously given directives.

9. From October 4, 2006, to March 16, 2009, Peters failed

to adhere to her schedule as written and was issued 16 written

directives, including two written reprimands, to adhere to her

class schedule and not to make any changes to the class schedule

unless approved by the Principal or Assistant Principal. 3 On

September 3, 5, 8, 9, 10, 11, and 12, 2008, Peters did not

adhere to her daily schedule as written when she didn't report

to her assignment. Peters received her first written reprimand

for failing to adhere to her schedule on September 21, 2008. 4

10. The Principal went out of her way to work with Peters

constantly and met with her numerous times providing verbal

directives to follow the school policies including adhering to

the class schedule.

11. After the first reprimand, Peters continued to fail to

adhere to her class schedule numerous times in November and

December 2008 and January 2009. Peters received a second

written reprimand for failing to adhere to her class schedule on

March 16, 2008.

12. Peters signed both of the written reprimands dated

September 21, 2008, and March 16, 2008. Each informed Peters

that "Any recurrence of the above infraction [would] result in

further disciplinary action."

13. By failing to adhere to her schedule, Peters burdened

the Morningside administrators and other teachers who had to

cover for Respondent or do her work. Peters also impaired the

learning environment for the ESE students when she didn't show

up, since she was responsible for educating the students

assigned to her. Further, when Peters did not report to her

assigned classes, she jeopardized the health, safety, and

welfare of the children assigned to her care.

14. From November 8, 2006, to February 16, 2009, Peters

was issued several written directives including one written

reprimand for failing to request authorization from the

administration before leaving the school site, and three written

directives for failing to sign in and out when leaving and

returning to the school site, as per school site policy. 5

15. Peters received two written reprimands on March 27,

2007, and on March 16, 2008, for failing to comply with the

established timelines in the execution of a variety of her

duties including, but not limited to, recording student grades,

failing to complete IEPs in a timely manner, and failing to

utilize the WISE system to complete IEPs. When Peters failed to

complete her IEPs, the Morningside administrators had to get

other teachers to complete Peters' job in addition to their own

assignments.

16. On February 2, 3, and 4, 2009, Peters failed to adhere

to her schedule as written.

17. Peters was reprimanded on February 20, 2009, for

numerous violations of school policy. The reprimand was

entitled RESPRIMAND-INSUBORDINATION and stated:

On the following dates, November 3, 6, 18,

20, and 25, 2008, December 1, 5, 8, and 9,

2008, January 12, 13, 15 and 21, 2009 and

February 2, 3, and 4, 2009, you did not

adhere to your schedule as written. On

December 10 and 11, 2008, you attended a two

day WISE training without prior approval

from this administrator. On January 13,

2009, you refused to meet with this

administrator. On January 14, 2009, you did

not attend a scheduled faculty meeting.

Since your Conference-For-[the-]Record

meeting in September, you have failed to

follow your schedule on 16 occasions, did

not attend a scheduled faculty meeting, and

have refused to meet with this administrator

on five different occasions and refused to

meet with the Assistant Principal on one

occasion. Your continuous defiance and

compliance with the site directives issued

on September 25, 2008 and reissued on

October 20, 2008, is considered

insubordination.

It is your professional responsibility as

a Miami-Dade County Public School employee

to comply with directives issued by the site

supervisor.

You are hereby officially reprimanded for

the following violations of your

professional contractual responsibilities:

1. Non-compliance with Miami-Dade County

School Board Rule 6GX13-4A-1.21,

Responsibilities and Duties.[ 6 ]

2. Refusal to meet with this administrator.

3. Failure to adhere to school site

procedures.

4. Failure to adhere to assigned schedule

as written.

18. At hearing, Respondent answered in the affirmative

that she believed that the directives relating to adhering to a

work schedule, seeking administrative approval before leaving a

school site, and signing in and out when leaving campus were

reasonable.

19. Peters' journal, submitted to the School Board

detailing her responses to the disciplinary action of

February 20, 2009, stated “I’m not following the schedule

because it doesn’t make sense.” 7

20. After receiving the reprimand of February 20, 2009,

Peters failed to secure approval from an administrator on either

February 26, 2009, or March 3, 2009, when she signed out on the

staff sign out log and left the building at a time when she was

scheduled to work with students.

21. On March 5, 2009, Peters refused to sign the

memorandum dated March 4, 2009, entitled RESPONSIBILITIES AND

DUTIES that the Assistant Principal provided Peters. The

memorandum advised Peters that she had been told on February 20,

2009, to "adhere to [her] schedule and secure administrative

approval prior to leaving the building at a time other than the

scheduled lunch time.” It also stated:

This memorandum serves as a final reminder

that you are to adhere to your schedule and

you are to request prior approval from this

administrator to leave the building at

anytime other than your scheduled duty free

half hour lunch block.

22. On March 16, 2009, John-Lousissaint observed Peters in

the hallway at approximately 8:30 a.m. and instructed her to

report to her scheduled assignment. At approximately 8:40 a.m.,

the Assistant principal saw Peters and told her several more

times to report to her scheduled assignment. At 9:00 a.m.

Peters was not in her scheduled classroom assignment.

23. On March 16, 2009, the Assistant Principal gave Peters

a memorandum dated March 16, 2009, entitled RESPONSIBILITIES AND

DUTIES that stated, "You are reminded that you are to adhere to

school site procedures and your schedule as outlined unless

notified by an administrator."

24. As a result of Peters actions described in paragraphs

21 and 22 above, on or about April 16, 2009, a CFR was held with

Peters. Administrators addressed Peters' gross insubordination

and misconduct at the CFR. Peters was instructed yet again to

adhere to the directives previously issued by the Principal on

numerous occasions, and to comply with the reasonable requests

of the Principal.

25. Peters testified at hearing that her personal

relationship with the school administrators has become strained

and she felt she was being singled out. Peters felt as though

she were not being treated like a teacher. Peters asserted that

she should work with higher level students and didn't feel like

she was part of the Morningside team since she didn't have a

homeroom. 8

26. On or about May 18, 2009, Morningside's Principal

observed Peters in the school's resource room, sitting in front

of a laptop, during a time when Respondent was scheduled to be

instructing students. John-Louissaint instructed Respondent to

follow her schedule and report to room 103. Peters refused and

replied, "No, I don't think I will be going." The Principal

left and went and brought a union steward back to the resource

room, and repeated to Peters, "Ms. Peters as your supervisor and

in front of your union steward, you are directed to report to

your scheduled assignment." Peters was insubordinate and

refused to go stating again, "No, I am not going." The students

in room 103 were unattended.

27. On May 20, 2009, the Principal issued a memorandum to

Peters regarding the May 19, 2009, incident stating that

Respondent's "continuous defiance and non-compliance with

previously issued directives is considered blatant and gross

insubordination."

28. On or about August 26, 2009, Peters was notified by

letter that the Superintendent of Schools was recommending to

the School Board to suspend her without pay for 30 workdays.

The letter further notified Respondent the reasons for the

recommendation included, but were not limited to: gross

insubordination and violations of School Board Rules 6Gx13- 4A-

1.21 , Responsibilities and Duties and 6Gx13- 4A-1.213 Code of

Ethics.

29. At a regularly scheduled meeting on September 9, 2009,

the School Board of Miami-Dade County took action to suspend

Respondent for 30 workdays without pay for just cause including,

but not limited to, gross insubordination and violations of

those School Board Rules as set forth above in paragraph 28.

Respondent was notified of the School Board's action by letter

dated September 10, 2009.

30. On March 15, 2010, the School Board filed its Notice

of Specific Charges charging Respondent with misconduct in

office, gross insubordination, and violation of School Board

rules regarding responsibilities and duties, and ethics.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties hereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

32. Petitioner has the burden of proving that it has just

cause to suspend the Respondent's employment as a Special

Education teacher.

33. "Just Cause" is defined to include misconduct in

office and gross insubordination by Section 1012.33(1)(a),

Florida Statutes. Moreover, Florida Administrative Code Rule

6B-4.009 identifies the criteria necessary for suspension or

dismissal of instructional personnel.

34. Petitioner's burden to prove the charges against

Respondent must be met by a preponderance of the evidence.

Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d

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

(Fla. 3d DCA 1990).

35. The Notice of Charges filed against Respondent charged

her with the following four counts: 1) violation of State Board

Rule 6B-4.009(3), Misconduct in Office; 2) Section 6B-4.009(4),

F.A.C., Gross Insubordination; 3) School Board Rule 6Gx13- 4A-

1.21 Responsibilities and Duties; and 4) 6Gx13- 4A-1.213 Code of

Ethics.

I. Misconduct in Office

36. The State Board has defined the term "misconduct in

office" by Florida Administrative Code Rule 6B-4.009(3), which

provides in pertinent part:

(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.

37. In prosecuting Count I, Petitioner relies on Florida

Administrative Code Rule 6B-1.001, which sets forth the Code of

Ethics of the Education Profession in Florida. Subsections (2)

and (3) of the rule provide:

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) 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.

38. Florida Administrative Code Rule 6B-1.006 is entitled

Principles of Professional Conduct for the Education Profession

in Florida and it provides in relevant part, as follows:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires

that the individual:

(a) Shall 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.

39. The evidence, taken as a whole, demonstrated that

Respondent's actions are misconduct in office. Peters'

repetitive failure to adhere to her class schedule and failure

to report to her assigned classes jeopardized the health,

safety, and welfare of the children assigned to her care.

40. Peters misconduct was further demonstrated by her

failure to protect the students from conditions harmful to

learning. Respondent directly impaired the learning environment

by not showing up and teaching her assignments. Respondent also

failed to service the students' educational needs when she

repetitively did not complete IEPs or record student grades and

attendance records.

41. Therefore, the Petitioner has proven that Peters

engaged in misconduct in office.

II. Gross Insubordination

42. Section 6B-4.009(4), Florida Administrative Code

provides:

(4) Gross insubordination or willful

neglect of duties is defined as a constant

or continuing intentional refusal to obey a

direct order, reasonable in nature, and

given by and with proper authority.

43. Petitioner proved Respondent was given approximately

47 written directives for numerous violations of School Board

policies and rules. Each successive directive was issued after

Respondent refused to comply with the previously given

directive. Out of those directives at least four were written

reprimands from either the Morningside principal or assistant

principal admonishing and specifically instructing Peters to

follow Miami-Dade County School Board Rule 6GX13- 4A-1.21 ,

Responsibilities and Duties; adhere to school site procedures;

and adhere to assigned schedule as written.

44. Peters' constant and continuing intentional refusal to

obey administrators' reasonable requests to adhere to her work

schedule at least 25 times was gross insubordination. Further,

Peters' defiant behavior of refusing to go to classroom 103 on

or about May 18, 2009, and telling the principal, "No, I am not

going" twice is even more egregious than her previous flagrant

displays of gross insubordination.

45. Therefore, Petitioner has met its burden to

demonstrate gross insubordination.

III. School Board Rules

a. Responsibilities and Duties

46. At all times material to the instant case, School

Board Rule 6Gx13- 4A-1.21 has provided as follows:

Permanent Personnel

RESPONSIBILITIES AND DUTIES

Employee Conduct

All persons employed by The School Board of

Miami-Dade County, Florida are

representatives of the Miami-Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system. Unseemly conduct or the

use of abusive and/or profane language in

the workplace is expressly prohibited.

47. Peters' conduct, as described above, has been deemed

inappropriate. Even after having received numerous written

directives to uphold the School Board’s Responsibilities and

Duties rule, Respondent failed to bring credit upon herself and

the school system with her intentional inaction. Respondent

acted contrary to the established school standards and impeded

in the education of the students and operation of the school.

Further, Peters' unseemly conduct was not suitable for the

school for it impaired the administrators effectiveness in the

school.

48. Therefore, Petitioner met its burden and showed how

Peters' violated School Board Rule 6Gx13- 4A-1.21 .

b. Code of Ethics

49. School Board Rule 6Gx13- 4A-1.213 provides:

* * *

2. The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

3. Aware of the importance of maintaining

the respect and confidence of one's

colleagues, students, parents, and other

members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

50. As found above, the evidence demonstrates that Peters

disregarded numerous reasonable directives and School Board

rules and policies. Rules and policies are in place for a

reason. Peters is not permitted to decide which ones, if any,

she arbitrarily wants to follow or when she wants to follow

them.

51. Petitioner demonstrated that Respondent failed to make

her primary concern the development of her students' potential.

The evidence shows that on numerous occasions Peters neither

provided the students the services needed, nor supervised

students when assigned because she was not following her

assigned schedule. Further, Petitioner demonstrated that

Peters' continuous pattern of failing to teach the students

because of her frequent unexcused absences from her assigned

classroom, and her repeated failure to complete students' IEPs,

grade sheets, and attendance records were inappropriate actions.

And, even after the Principal and Assistant Principal’s numerous

efforts to try to get Respondent to follow the right principles

of the school, Respondent never conformed to the standard

behavior and continued to be unethical.

52. Therefore, Petitioner also demonstrated that Peters

violated the Code of Ethics.

53. Petitioner has met its burden and proven it has just

cause to discipline Peters in that her behavior was misconduct

in office and she was grossly insubordinate. Each of the four

counts alleged in the Notice of Specific Charges was proven in

this matter.

54. Given the remarkable history of inappropriate behavior

and the egregious nature of Peters' conduct, the undersigned

finds it remarkable that the School Board is only proposing a

30-day suspension without pay. Under the circumstances found by

the undersigned, the disciplinary action should be more severe

than a 30-workday suspension without pay.

RECOMMENDATION

Upon consideration of the Findings of Fact and the

Conclusions of Law reached, it is

RECOMMENDED that the Miami-Dade County School Board enter a

final order suspending Peters without pay for 30 days.

DONE AND ENTERED this 21st day of June, 2010, in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

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 21st day of June, 2010.

ENDNOTES

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

2009 edition unless otherwise indicated.

2 / There are many more disciplinary incidents that occurred

during Peters employment at Morningside, but the undersigned

chose to detail and highlight only some. Similar actions are

grouped together.

3 / Peters' written directives to adhere to her work schedule as

written included memorandums dated October 4, 2006, March 9,

2007, October 29, 2007, September 21, 2007, November 21, 2007,

October 17, 2009, January 15, 2009, March 4, 2009, and March 16,

2009. Respondent also received five CFRs on February 23, 2007,

March 28, 2007, March 16, 2008, September 24, 2008, and

February, 2009, that instructed Respondent to adhere to her

written work schedule unless the changes were approved by the

Principal or Assistant Principal. Each successive directive was

issued in response to Peters' refusal to comply with the

previously given directives.

4 / The reprimand also addressed Peters' not attending a

scheduled Professional Learning Community and refusing to meet

with the Principal on September 8, 2008. The reprimand directed

Peters to attend all scheduled faculty meetings, department

meetings, committee meetings, and all Professional Learning

Communities meetings. Peters signed the reprimand on

September 25, 2008.

5 / Peters asserted during the hearing that she was never told to

sign in and out. The Principal's testimony is held to be more

credible since several written directives bolster the

Principal's testimony by specifically instructing Peters as to

the sign in and out policy.

6 / Respondent had been instructed about the School Board rule

regarding Responsibilities and Duties in numerous previous

written directives.

7 / The undersigned deems such an explanation unpersuasive. As a

School Board employee Peters is required to comply with her

assigned duties and schedule whether she agrees or not and she

had been warned as such numerous times.

8 / Such testimony is accorded little weight. Respondent’s

feelings do not justify her purposely repetitively refusing to

perform her job duties as instructed and assigned.

COPIES FURNISHED :

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Christopher J. La Piano, Esquire

Arianne B. Suarez, Esquire

Miami-Dade County School Board

Attorney' s Office

1450 Northeast Second Avenue

Miami, Florida 33132

Alberto M. Carvalho, Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

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.