09-002749TTS Palm Beach County School Board vs. Rebecca Sorenson Status: Closed Recommended Order on Wednesday, November 18, 2009.

Summary: Respondent, who failed to report a student's allegation of abuse and failed to take appropriate measures to protect the student from an alleged perpetrator, who worked at the school, should be suspended without pay for ten days.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2749

)

REBECCA SORENSEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference on September 9, 2009, between

West Palm Beach and Tallahassee, Florida, before Administrative

Law Judge Claude B. Arrington of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Vicki L. Evans-Pare, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416-9239

For Respondent: Peter Perettine, Esquire

190 West Palmetto Park Road

Boca Raton, Florida 33432

STATEMENT OF THE ISSUE

Whether Petitioner, Palm Beach County School Board

(Petitioner or School Board), has just cause to discipline the

employment of Rebecca Sorensen (Respondent or Ms. Sorensen)

based on the conduct alleged in the “Petition.” Also at issue

is the appropriate penalty, if any.

PRELIMINARY STATEMENT

At the times relevant to this proceeding, Ms. Sorensen was

an assistant principal at Hagen Road Elementary School (Hagen

Road). On May 15, 2009, the School Board filed a Petition

against Respondent alleging certain facts pertaining to

information received by Respondent regarding an allegation of

sexual abuse against a male fifth-grade student at Hagen Road,

who, to protect his privacy, will be referred to as Student J.

Also in an effort to protect the student’s privacy, Student J.’s

grandfather, who served as his guardian, will be referred to as

Student J.’s grandfather. The alleged abuse occurred at the

residence of Student J.’s grandfather and involved a male adult

who was serving as a sitter for Student J. while the grandfather

was hospitalized for medical tests. The male caretaker also

worked as a counselor at the Hagen Road School Age Child Care

Program (the after-school care program) during the school day,

including the hours the after-school program was open. The

adult sitter will be referred to as the male counselor.

Based on the factual allegations of the Petition,

Petitioner asserts that Respondent’s employment should be

suspended without pay for ten days.

By letter dated March 24, 2009, Arthur C. Johnson, Ph.D.,

Petitioner’s Superintendent of Schools, advised Respondent in

writing that he intended to recommend to the School Board at a

special meeting to take place on April 8, 2009, that he would

recommended that Respondent’s employment be suspended without

pay for ten days. The letter reflects that the recommendation

was based on allegations of

. . . failure to exercise best professional

judgment, failure to report child abuse,

failure to safeguard a student, misconduct-

careless disregard for policy/directive/rule

and violation of 6B-1.001(3), Florida

Administrative Code, [and] The Code of

Ethics of the Education Profession in

Florida. Furthermore, the allegations

included a violation of School Board Policy

1.013(1), Responsibility of the School

District Personnel and Staff and 5.3,

Reporting Child Abuse, Abandonment, or

Neglect.

The letter further reflected the following:

Sufficient just cause exists for you to be

disciplined pursuant to Sections

1012.22(1)(f) and 1012.27(5), Florida

Statutes; Palm Beach County School District

Policies 1.013 and 3.27 for violations of

the foregoing.

The School Board voted to adopt Superintendent Johnson’s

recommendation. Respondent thereafter requested a formal

administrative hearing, Petitioner filed its formal petition,

and the matter was referred to DOAH and this proceeding

followed.

The Petition alleges that on September 3, 2008, Respondent

became aware of Student J.’s disclosure that he had been the

victim of a lewd and lascivious sex act by the male counselor.

The Petition charges Respondent with failing to report the child

abuse as required by Section 39.201, Florida Statutes, and

School Board Policy 5.30. The Petition further charges that the

failure to report constituted a breach of Respondent’s

“obligation to the student . . . (to) 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” as

required by Florida Administrative Code Rule 6B-1.003(3)(a).

The Petition further alleged that the breach was sufficiently

serious to impair her effectiveness as an assistant principal at

the school and constituted a failure to exercise her best

professional judgment. The Petition alleged that Respondent

violated School District Policies 1.013 and 5.30; Florida

Administrative Code Rules 6B-1.001, 6B-1.006(3), and 6B-4-.009;

and Section 39.201, Florida Statutes.

At the final hearing, Petitioner presented the testimony of

Respondent; Cheri Rosen (Assistant Director of the after school

program); Nicole Lamb (Director of the after school program);

Richard Hughes (Principal of Hagen Road); Vincent Mintus (a

Detective on Petitioner’s police force); and Angelette Green

(Director of Employee Relations for Petitioner). Petitioner

offered the following pre-marked Exhibits, each of which was

admitted into evidence: 1, 2, 6, 7, 10, 13, 14, 16, 17, 18, 20,

23, 24, 27, and 28. Respondent offered no further testimony,

but she offered one exhibit, which was admitted into evidence.

Unless otherwise noted, all statutory references are to

Florida Statutes (2009). References to rules are to the rules

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

relevant statutes and rules have not changed since the date of

the events at issue.

As part of their Prehearing Stipulation, the parties

stipulated to certain facts. Those factual stipulations have

been incorporated as findings of fact.

A Transcript of the proceedings, consisting of one volume,

was filed on October 15, 2009. On a joint motion, the deadline

for the filing of Proposed Recommended Orders was extended to

October 30, 2009. Each party filed a Proposed Recommended

Order, which has been duly-considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the

constitutional entity authorized to operate, control, and

supervise the public schools in Palm Beach County, Florida.

2. Respondent has been an employee of the Petitioner since

1987. At all times relevant to this proceeding, Respondent was

an assistant principal employed by Petitioner at Hagen Road,

which is a public elementary school in Palm Beach County,

Florida.

3. Petitioner’s Policy No. 5.30 requires that, “(a)

District employees who know or have reasonable cause to suspect,

that a child is an abused, abandoned, or neglected child shall

immediately report such knowledge or suspicion to the Department

of Children and Families’ [sic] Florida Abuse Hotline (1-800-

96ABUSE, 24 hours a day)."

4. Section 39.201(1)(a), Florida Statutes, provides, as

follows:

(1)(a) Any person who knows, or has

reasonable cause to suspect, that a child is

abused, abandoned, or neglected by a parent,

legal custodian, caregiver, or other person

responsible for the child's welfare,[ 1 ] as

defined in this chapter, or that a child is

in need of supervision and care and has no

parent, legal custodian, or responsible

adult relative immediately known and

available to provide supervision and care

shall report such knowledge or suspicion to

the department in the manner prescribed in

subsection (2).

(b) Reporters in the following occupation

categories are required to provide their

name to the hotline staff:

* * *

4. School teacher or other school

official or personnel;

5. Respondent’s position as an Assistant Principal at

Hagen Road is included within the definitions of school

personnel for purposes of Section 39.201(1)(a), Florida

Statutes.

6. The requirement to report suspected child abuse was

reiterated in the Faculty Handbook for Hagen Road for the 2008-

09 school year.

7. Cheri Rosen is the assistant director of Hagen Road’s

after school care program. Ms. Rosen’s son and Student J. were

in the fifth grade during the 2008-09 school year and have been

friends since their first grade year. Labor Day fell on

September 1 in 2008. On August 28, 2008, the Thursday prior to

Labor Day, Student J. spent the night at Ms. Rosen’s house

because his grandfather was hospitalized for medical tests.

Student J. told Ms. Rosen’s daughter of an incident that

occurred in December 2007, while Student J. was being baby-sat

at his grandfather’s house, by the male counselor from the Hagen

Road after school care program. Ms. Rosen’s daughter

immediately told her father (Mr. Rosen) who instructed his

daughter to tell her mother (Mrs. Rosen). Immediately after her

daughter talked to her, Ms. Rosen asked that Student J. come

tell her firsthand what had happened.

8. Student J. told Ms. Rosen that while he was being baby-

sat by the male counselor at his grandfather’s house in December

2007, just before winter break, the male counselor had taken a

live snake and wrapped it around his (the male counselor’s)

penis and told Student J. to look. Student J. told Ms. Rosen

that he looked and then looked away. Student J. related that

the male counselor told Student J. “now its your turn.” Student

J. told Ms. Rosen that he said no and walked out of the room.

9. Ms. Rosen told Student J. that she was going to have to

tell his grandfather about the incident, and that she was also

going to report this to Ms. Lamb, who was Ms. Rosen’s supervisor

at the after school care program.

10. Ms. Rosen spoke to Ms. Lamb shortly after her

conversation with Student J. Ms. Lamb advised Ms. Rosen that

she should tell the Student J.’s grandfather that he should

contact the police. She further told Ms. Rosen, incorrectly,

that she did not have to go through the school because the

alleged incident occurred at the residence of Student J.’s

grandfather, and because Student J. reported the incident at her

home.

11. Two days after Ms. Rosen’s conversation with Student

J., his grandfather returned home from the hospital. Ms. Rosen

and her husband visited with the grandfather and related to him

the incident as Student J. had related it to them. The

grandfather, who tried to remain calm because he has a heart

condition, asked what he should do next. Ms. Rosen told him he

had to go to the police.

12. When Ms. Lamb returned to school on September 2, 2008,

she had a voice mail from Student J.’s grandfather. She tried

to return the call, but she could not reach him.

13. On Thursday, September 4, 2008, Respondent was paged

by a Ms. Ciavolino, the school treasurer and bookkeeper.

Ms. Ciavolino related that Student J.’s grandfather had just

called, told her about the incident, and said that he wanted

advice from Respondent.

14. Shortly thereafter on September 4, 2008, Student J.’s

grandfather called Respondent to talk with her about the

incident. The grandfather was hesitant, so Respondent told him

what Ms. Ciavolino had told him, and Respondent also told him

that she knew he wanted advice. After the grandfather confirmed

what Ms. Ciavolino had related to her, Respondent advised the

grandfather that the incident needed to be reported right away.

She asked the grandfather where he lived in an attempt to

determine whether the Delray Beach Police Department (DBPD) or

the Palm Beach County Sheriff’s Office would have jurisdiction.

She also told him that it would need to be reported to the

Department of Children and Family Services (DCFS). Although he

remained hesitant, the grandfather told Respondent that he would

report the incident.

15. On September 4, 2008, Respondent instructed Ms. Lamb

to keep the male counselor away from Student J. and all other

students. At that time, the male counselor was preparing to

leave in a week or two to join the military. In the interim, he

had been assigned to train new counselors, which did not require

that he have direct contact with children. The male counselor

remained on Hagen Road campus until he was removed as a result

of the police investigation that ensued.

16. Other than her instructions to Ms. Lamb, Respondent

took no further action to ensure that the male counselor would

have no contact with children.

17. Respondent did not report the allegation of abuse to

her principal (Mr. Hughes), to any law enforcement agency, or to

the DCFS. Further, she did not instruct Ms. Rosen, Ms. Lamb, or

Ms. Ciavolino to file any type of written report. 2

18. Respondent testified that she did not feel she had to

file a report because Student J.’s grandfather agreed to file a

report. Respondent further testified that she did not feel she

had to file a report because she heard of the allegations from

the grandfather and not the student.

19. On September 9, 2008, Student J.’s grandfather

reported the incident to the DBPD which immediately began an

investigation in conjunction with a DCFS investigator.

20. As a result of the DBPD/DCFS investigation, Mr. Hughes

learned of the allegations and immediately barred the male

counselor from the school campus.

21. Thereafter, Petitioner’s Police Department began its

own investigation of Respondent based on her conduct and failure

to act as described in this Recommended Order.

22. All relevant procedural steps were taken by Petitioner

in bringing these charges against Respondent. Part of the

procedure requires a pre-disciplinary meeting at which the

subject of an investigation is given the opportunity to give his

or her version of the events. Respondent declined to attend the

pre-disciplinary meeting on advice of counsel because at the

time of the meeting a criminal investigation was being

conducted. 3

23. After the pre-disciplinary meeting, the matter was

referred to Petitioner’s Employee Investigatory Committee (EIC), 4

who recommended that the subject charges be brought against

Respondent with the recommended disposition of a ten-day

suspension of employment without pay. That recommendation was

forwarded to Dr. Johnson in his capacity of Superintendent of

Schools, who agreed with the recommendations of the EIC and

submitted the recommendation to the School Board. On April 8,

2009, the School Board voted to accept the recommendation,

subject to Respondent’s rights pursuant to the provisions of

Chapter 120, Florida Statutes.

24. The greater weight of the credible evidence

established that Respondent had a reasonable basis to believe

that Student J. had been subjected to sexual abuse and that she

did not report that abuse to her principal, the FDCS hotline, or

law enforcement.

25. The greater weight of the credible evidence also

established that Respondent took insufficient steps to protect

Student J. from the male counselor after she learned of the

allegations of abuse. In reaching this finding, the undersigned

has considered that Principal Hughes barred the male counselor

from school premises as soon as he learned of the allegations.

Respondent did not bar the male counselor from the school

premises, but merely instructed Ms. Lamb to make sure that the

male counselor “. . . would not be with children until this was

resolved.” 5

26. Respondent’s employment has not previously been

disciplined. Other than the facts set forth above, Respondent

has been, in the words of Principal Hughes, a fantastic

assistant principal who has performed above expectations. 6

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter parties to this case

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

28. Because Petitioner seeks to suspend Respondent’s

employment without pay and does not involve the loss of a

license or certification, Petitioner has the burden of proving

the allegations in its Administrative Complaint by a

preponderance of the evidence, as opposed to the more stringent

standard of clear and convincing evidence. McNeill v. Pinellas

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

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

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

(Fla. 3d DCA 1990).

29. The preponderance of the evidence standard requires

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

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

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

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

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

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

30. Pursuant to the provisions of Section 1012.27, Florida

Statutes, the School Superintendent has the authority to

recommend to the School Board that members of the instructional

staff be disciplined.

31. Pursuant to Section 1012.27(1)(f), Florida Statutes,

the School Board has the authority to act on such

recommendations.

32. Section 1012.33(6)(b), Florida Statutes, pertains to

contracts between school boards and members of the supervisory

staff, including school principals, and provides that such a

contract can be suspended or terminated for just cause, which

includes, relevant to this proceeding, misconduct in office.

33. Petitioner has charged Respondent with “misconduct in

office.” The State Board of Education has defined the term

“misconduct in office” by Florida Administrative Code Rule 6B-

4.009(3), as follows:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, F.A.C., which is so serious as to

impair the individual’s effectiveness in the

school system.

34. The definition of “misconduct in office” requires a

two-pronged analysis. The first prong is whether the educator

violated the Code of Ethics of the Education Profession or the

Principles of conduct for the Education Profession in Florida.

The second prong is whether the breach is so serious as to

impair the individual’s effectiveness in the school system.

35. Petitioner alleged in paragraphs 13 and 14 of its

Petition that Respondent failed to file a report of child abuse

mandated by Section 39.201, Florida Statutes, and School Board

Policy 5.30. Respondent had a reasonable basis for believing

that Student J. had been sexually abused in the manner reported

to her and consequently she was mandated to file a child abuse

report as required by statute and the School Board policy.

Respondent failed to do so. The mandatory nature of the rule

and the statute did not give Respondent the option she chose,

namely, waiting to see if the grandfather would file a complaint

with either a law enforcement agency of DFCS.

36. Petitioner alleged in paragraph 16 through 19 that

Respondent’s failure to report the child abuse violated The

Principles of Professional Conduct for the Education Profession

in Florida set forth at Florida Administrative Code Rule 6B-

the student . . . [to] 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.”

Petitioner established that Respondent failed to take adequate

steps to protect Student J. from the male counselor after

Respondent learned of the allegations of abuse from Student J.’s

grandfather.

37. Petitioner alleged in paragraph 21 of the Petition

that Respondent failed to exercise her best professional

judgment in failing to report the allegations of abuse and in

failing to protect Student J. from the male counselor.

Petitioner relies generally on the provisions of the Code of

Conduct of Ethics of the Education Profession in Florida as

codified in Florida Administrative Code Rule 6B-1.001.

Subsection (2) of the Code includes a requirement that an

educator “. . . seek to exercise the best professional judgment

and integrity.” Respondent’s conduct following her conversation

with Student J.’s grandfather on September 4, 2008, demonstrated

poor judgment and constituted a failure to adhere to the

requirements set forth in Florida Administrative Code Rule 6B-

1.001(2), as alleged in paragraph 21 of the Petition.

38. Petitioner established the first prong of the two-

pronged analysis required by the definition of the term

“misconduct in office.” Petitioner established that

Respondent’s conduct in failing to file mandatory reports

required by statute and rule, her failure to take appropriate

action to protect Student J. from the male counselor, and her

failure to utilize her best professional judgment following her

conversation with Student J.’s grandfather, violated Florida

Administrative Code Rules 6B-1.006(3)(a) and 6B-1.001(2) as

alleged in the Petition.

39. The evidence as to the second prong of the analysis

was not as clear as the evidence establishing the first prong.

Mr. Hughes received a few calls from members of the public about

the incident, and there was at least one newspaper article

published about the matter. However, it is clear that

Mr. Hughes is pleased with Respondent’s overall job performance.

The only other testimony as to impairment came from Ms. Green,

whose background is in law enforcement, not school

administration.

40. “Misconduct in office” may be established, even in the

where the conduct engaged in by the educator is of such a nature

that it “speaks for itself” in terms of its seriousness and its

adverse impact on the educator’s effectiveness. See Purvis v.

Marion County School Board , 766 So. 2d 492, 498 (Fla. 5th DCA

2000); Walker v. Highlands County School Board , 752 So. 2d 127,

128-129 (Fla. 2d DCA 2000); and Summers v. School Board of

Marion County , 666 So. 2d 175 (Fla. 5th DCA 1995). The

misconduct at issue in this proceeding is of such a nature.

Failing to report an allegation of abuse from an elementary

student directed against an employee of that school and failing

to immediately take meaningful action to protect that student

and the other students from the alleged perpetrator is such a

lapse of judgment that it of necessity impairs the effectiveness

of an assistant principal.

41. Petitioner established by the requisite standard that

Respondent is guilty of misconduct in office.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

adopting the Findings of Fact and Conclusions of Law contained

in this Recommended Order. It is further RECOMMENDED that the

final order suspends Respondent’s employment without pay for a

period of ten days.

DONE AND ENTERED this 18th day of November, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of November, 2009.

ENDNOTES

1 / Pursuant to Section 30.01(46), Florida Statutes, an adult

sitter is an "ther person responsible for the child's welfare."

2/ Ms. Rosen and Ms. Lamb were subsequently disciplined by

Petitioner for their failures to properly report the allegations

of abuse.

3 / On December 8, 2008, an assistant state attorney filed a

statement indication that no information would be filed for

failure to report child abuse with the following statement:

Based on the evidence presented, the State

cannot prove the allegations beyond every

reasonable doubt. This matter will be

handled administratively.

4 / The EIC is composed of administrators, including an area

superintendent, a district administrator, and principals at the

high school, middle school, and elementary school levels.

5 / See Transcript, page 23, beginning at line 16.

6 / See Transcript, page 63, beginning at line 6.

COPIES FURNISHED :

Vicki L. Evans-Pare, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Peter Perettine, Esquire

190 West Palmetto Park Road

Boca Raton, Florida 33432

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 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.