10-000371TTS Palm Beach County School Board vs. Paula Prudente Status: Closed Recommended Order on Monday, January 24, 2011.

Summary: School Board failed to prove by clear and convincing evidence that teacher was grossly insubordinate; the Petition was inadequate. Recommend that the ten-day suspension without pay should be rescinded with back pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 0371

)

PAULA PRUDENTE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to not ice, a hearing was conducted in this case on

November 2, 20 10 , and November 3, 2010 , at video

teleconferencing sites in West Palm Beach and Tallahassee,

Florida, before Administrative Law Judge June C. McKinney of the

Division of Administrative Hearings, p ursuant to the authority

set forth in Sections 120.569 and 120.57(1), Florida Statutes.

APPEARANCES

For Petitioner: Corey M. Smith , Esquire

Elizabeth McBride, Esquire

Palm Beach County School Board

Post O ffice Box 19239

West Palm Beach, Florida 33416 - 9239

For Respondent: Jeffrey Sirmons , Esquire

Johnson and Haynes, P.A.

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

STATEMEN T OF THE ISSUE

The issue in this case is whether there is just cause for a

ten - day suspension of Paula Prudente's employment with the Palm

Beach County School Board .

PRELIMINARY STATEMENT

By letter Paula Prudente ("Respondent" or " Prudente ") was

notifie d that Superintendent Arthur C. Johnson would recommend

to the Palm Beach County School Board at its meeting on

November 3, 2010, that Respondent be suspended without pay for

ten days. At a special meeting on December 2, 2009, t he School

Board voted and a pproved the recommendation .

Respondent elected to dispute the reasons for the

suspension and requested a hearing . Because s he requested a

formal proceeding, the matter was referred to the Division of

Administrative Hearings (DOAH) .

The School Board filed a Petition with DOAH on January 2 5 ,

2010 , in which it charged Prudente with violat ing School

District Policies 1.013( R esponsibilities of School District

Personnel), 3.27(Suspension and Dismissal of Employees), 2.59

(Political A ctivities on School Board P ro perty ), and 3.29

(Employee Use of T echnology ) , as well as Florida Administrative

Rule s 6B - 1.001 (C ode of Ethics of the Education Profession in

Florida); and 6B - 4.009(4)(Criteria for Suspension and

Dismissal).

At hearing, Petitioner presented the testimon y of nine

witnesses : Reginald Myers , p rincipal of Park Vista Community

High School ; Terry Costa , p rincipal of John I. Leonard Community

High School ; Diane Howard , a ssistant p rincipal of John I Leonard

High School ; Tracey Robertson Sims , v ice p rincipal of S outh

Olive Elementary School ; Jane Kirkland , teacher; April Leach ,

teacher; Retha Palmer , teacher; Eli zabeth Boutet , Learning Team

Facilitator a t Palm Beach Lakes C ommunity High School; and

Sonia E. Hill - Howard, Director of Employee Relations .

Petitioner' s Exhibits numbered 1 through 5, 7, 9 through 11, 14,

17, 19, 21, 22, 24 through 26, 28, 31, 35, 41 through 50, 54, 56

through 64, 66 and 67 were admitted into evidence. Respondent

testified on her own behalf. Respondent's composite E xhibit 1

and Exhibit 2 were admitted into the record.

At the close of the hearing, the parties stipulated that

the proposed recommended orders would be due 30 days after the

filing of the transcript. The proceedings were transcribed , and

the parties availed themselves of the right to submit proposed

recommended orders after the filing of the transcript. The

three - volume T ranscript of the final hearing was filed with DOAH

on December 3 , 2010 . The due date for the proposed rec ommended

orders was January 3 , 2011 . Both parties filed timely P roposed

R ecommended O rders, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a duly - constituted s chool board charged

with the duty to operate, control, and supervise all free public

schools within Palm Beach County Florida . Article IX, Florida

Constitution; § 1001.32, Fla. Stat. Specifically, the School

Board has the authority to discipline employees.

§ 1012.22(1)(f), Fla. Stat.

2. Prudente started her employment with Petitioner in

1978 . She was employed pursuant to a professional services

contract .

3. Respondent is currently a reading teacher at John I.

Leonard Community High School.

4. Terry Costa ("Principal Costa" or "Costa") is the

principal at John I . Leonard and has bee n since 2005. She serves

as Prudente's supervisor.

5. During Prudente's employment, Costa received complaints

regarding Respondent's email use. Teachers complained to Costa

that Respondent did not use the email system according to the

School District gu idelines.

6. On or about September 27 , 2007, Costa gave Prudente a

directive to refrain from communicating with the chair of the

Reading Department in a negative manner through email and to

direct concerns to Assistant Principal Howard o r Costa. 1

7. P rudente failed to adhere to the directive .

Consequently, Costa issued Prudente a verbal reprimand with

written notation for failure to follow administrative directives

regarding the proper use of email on January 8, 2008.

8. The January 8, 2008, verbal reprimand with written

notation for failure to follow the administrative directive

regarding the proper use of email during the school day stated:

Specifically, you were given directives

on September 27, 2007, to refrain from

communicating with the chair person of the

Reading Department via email , in a negative

manner, regarding Reading Department

concerns. You were further directed to

email any and all department concerns to

Terry Costa or Diane Howard.

You are directed to cease such conduct

immediately . Further, you are to desist

from engaging in the same or similar conduct

in the future. Failure to do so will result

in further disciplinary action up to and

including a recommendation for termination.

Prudente signed the verbal reprimand on January 9 , 2008.

9. On October 1, 2008, Respondent emailed the faculty

using "1361" withou t prior approval . 2 Prudente's actions were

contrary to the February 6, 2007, pri or directive Principal

Costa had given her to get permission before sending school - wide

emai ls .

10. On October 8, 2008, a Pre - Disciplinary Meeting was

held. During the meeting, Principal Costa reminded Prudente

that she had been directed not to email the faculty without

going through Administration. Respondent's January 8, 2008,

verbal reprim and for improper emails during the school day was

discussed.

11. At hearing, Prudente admitted t hat she had been told

not to email the faculty by "1361" without going through

administration , but she emailed anyway because the CTA Office

had called h er t o help get teachers to vote. She said, "I know,

I wasn't suppose to email the whole faculty, but it was for

voting, contract voting I remember."

12. Prudente was reprimanded on October 14, 2008, for

violating the directive by Principal Costa . The writte n

reprimand , which Prudente signed , stated:

You failed to follow the administrative

directive by continuing to use the school

district email in a negative manner. You

continued to email the faculty using the

1361 mail without an administrator's

permission . You are directed to cease such

conduct immediately. Further, you are to

desist from engaging in the same or similar

conduct in the future. Failure to do so

will be considered gross insubordination and

will result in further disciplinary action,

up to and including a recommendation for

termination.

13. On November 4, 2008, Respondent sent some co - workers

emails with cartoons depicting President - elect Bar a ck Obama in a

negative fashion. The politically charged email s offended

several of the recipient staff members , who reported the

offensive emails to Principal Costa .

14. Retha Palmer, a math teacher, was one of the

recipients of the November 4, 2008, email. She was offended by

the content of the email. She res ponded to the email by saying ,

" I was wondering why would you send this to me? I thought we

were friends. Are you confused? These cartoons seem to be very

insulting to me, especially when I have a much different belief

of Senator Obama . . . . If you can't or won't stop then maybe

you shoul d simply seek other environments for this type of

harassment."

15. Principal Costa provided the information about

Prudente's email use to the Director of Employee Relations.

Subsequently, District Police Officer Ezra Dilbert ("Dilbert")

was assigned to i nvestigate the allegations against the

Respondent. Numerous other emails unrelated to work that

Prudente sent were discovered but the School Board's Petition

fails to include adequate charges of all the emails. Dilbert 's

report conclude d that Prudente vi olated the School Board's

policies regarding Employee Use of Technology and Political

Activities on School Board Property.

16. The matter ultimately was brought to the attention of

the School Superintendent, who by letter advised Respondent that

a determi nation had been made that there was "sufficient

evidence to warrant [her] suspension without pay , " and that he

therefore would recommend such to the School Board . The School

Board followed the School Superintendent's recommendation , a nd

Prudente timely re quested an appeal of the disciplinary action.

CONC LUSIONS OF LAW

1 7 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and t he

parties thereto pursuant to s ections 120.569 and 120.57(1),

Florida Statutes (2010) .

1 8 . In this proceeding, t he Collective Bargaining

Agreement ( " CBA " ) sets the parameters for Respondent's

employment . Article II Section M (1) of the CBA dictates that

the School Board must establish its disciplinary action with

clear and convinci ng evidence . Section M(6) provides for

suspension without pay of an employee where "just cause warrants

such disciplinary action."

19. Section 10 12 .33(6)(a), Florida Statutes, provides that

the teacher "may be suspended or dismissed at any time during

t he term of the contract," but only "for just cause " as provided

in paragraph (1)(a) of the statute.

Section 1012.33 provides:

(1)(a) Each person employed as a member of

the instructional staff in any district

school system shall be properly certified

pu rsuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1 012.39 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: immorality,

misconduct in office, incompetency, gross

insubordination, willful neglect of duty, or

being convicted or found guilty of, or

entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving

moral turpitude.

Section 1012.33(4)(c), further provides:

(4)(c) Any member of the district

administrative or supervisory staff and any

member of the instructional staff, including

any school principal, who is under

continuing contract may be suspended or

dismissed at any time during the school

year; however, the charges against him or

her must be based on immorality, misconduct

in office, incompet ency, gross

insubordination, willful neglect of duty,

drunkenness, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude, as these

terms are defined by rule of the S tate Board

of Education. Whenever such charges are

made against an employee of the district

school board, the district school board may

suspend such person without pay; but, if the

charges are not sustained, he or she shall

be immediately reinstated, and his or her

back salary shall be paid. In cases of

suspension by the district school board or

by the district school superintendent, the

district school board shall determine upon

the evidence submitted whether the charges

have been sustained and, if the c harges are

sustained, shall determine either to dismiss

the employee or fix the terms under which he

or she may be reinstated. If such charges

are sustained by a majority vote of the full

membership of the district school board and

the employee is dischar ged, his or her

contract of employment shall be canceled.

Any decision adverse to the employee may be

appealed by the employee pursuant to s.

120.68 , provided the appeal is filed within

30 days after the decision of the district

school board.

20. The School Board has charged Respondent with gross

insubordination in this matter for s ending the political emai ls

of November 4, 2008. The State Board of Education has defined

the term " gross insubordination " by Florida Administrative Code

Rule 6B - 4.009( 4 ), which provides in pertinent part:

(4) Gross insubordination or willful

neglect of duties is defined as a co nstant

or continuing intentional refusal to obey a

direct order, reasonable in nature, and

given by and with proper authority.

21. Based on the findings of fact herein, the School Board

has failed to prove by clear and convincing evidence that

Respondent committed the acts alleged in the Petition as the

factual basis justifying her suspension without pay. Even

though the School Board demonstrated that Respondent was

provided both an oral and written reprimand regarding email

usage , the record shows that Prudente's email directives were

specifically to refrain from communicating with the Chairperson

of the Reading Department , cease from using the "1361" mail, and

" same or similar conduct. "

22. Prudente's political emails are not "same or similar

conduct." And, h er directives never delineated political emails

as being inappropriate or wrong. The record is void of evidence

that Costa either discussed political emails with Respondent or

that she was ever told not to send political emails. Further,

the polit ical emails she sent on November 4 , 2008, did not go

through the "1361 , " so Prudente was not violating th e

prohibition against using "1361." T he record also lacks

evidence that the political emails were sent during school

hours. Therefore, no evidence wa s presented to demonstrate

Prudente willfully refused to obey the email usage order s when

she sent the political emails of November 4 , 2 008, and

Petitioner has failed to demonstrate gross insubordination.

23. Petitioner also asserts in its Proposed Recom mended

Order that the numerous other emails that Prudente sent ,

including Exhibits 3, 4, 5, 7, 9, 10, 11, 14, 17, 19, 21, 22,

28, 66, and 67 , demonstrate Prudente's misuse of the email

system and also prove insubordination. Despite overwhelming

evidence, the School Board failed to either charge Prudente in

the Petition or amend the Petition prior to hearing with facts

specifying each alleged act. Paragraph 16 of the Petition

states generally , "Respondent sent several other emails via the

School District's email account during school hours in direct

contravention of the reasonable directives of the District's

Administration." Such language is not adequate in that

disciplinary action may only be based upon those offenses

specifically alleged in the Petition . See Cottrill v . Dep't of

Ins . , 685 So. 2d 1371 , 1372 (Fla. 1st DCA 1996); Delk v. Dep ' t

of Prof ' l Reg . , 595 So. 2d 966, 967 (Fla. 5th DCA 1992) .

24. The School Board also charge d Prudente as follows in

paragraphs 18 and 19 of the Petition:

18. Respon dent's actions violated the

District's policies on email use, including

but not limited to School Board Policies

2.59 (Political Activities on School Board

Property) and 3.29 (Employee Use of

Technology).

19. Respondent's actions also violated

School Boa rd Policies 1.013

(Responsibilities of School District

Personnel and Staff) and 3.27 (Suspension

and Dismissal), as well as Florida

Administrative Code, Department of Education

6B - 1.001 (Code of Ethics of the Education

Profession in Florida), 6B - 1.006 (Pri nciples

of Professional Conduct for the Education

Profession in Florida), and 6B - 4.009

(Criteria for Suspension and Dismissal).

Of the paragraphs quoted above, neither alleges specific conduct

by the Respondent. For the undersigned to find a violation wh en

no facts were alleged would be a violation of due process. Wood

v. Dep't of Trans. 325 So. 2d. 25 (Fla. 4th DCA 1976). Given

the deficiencies in the Pe tition and the proof presented at

hearing, dismissal is required.

RECOMMENDATION

Upon considerati on of the Findings of Fact and the

C onclusions of L aw reached, it is

RECOMMENDED t hat Petitioner enter a final order rescinding

the ten - day suspension with back pay.

DONE AND ENTERED this 24th day of January , 2011 , 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

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah. state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day January , 2011 .

ENDNOTES

1/ The School Board presented evidence of Principal Meyers ,

Prudente's supervisor prior to Costa, reprimands and others not

charged in th e Petition . Those were not considered by the

undersigned in this matter.

2 / "1361" is the school - wide email address that allows emails to

be sent to every individual at the school with a School Board

account.

COPIES FURNISHED

Deborah K. Kearney, Gene ral 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

Tallaha ssee, Florida 32399 - 0400

Corey Michael Smith , Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416 - 9239

Matthew E. Haynes, Esquire

Johnson and Haynes, P.A.

The BarristerÓs Building

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

Jeffrey Scott Sirmons, Esquire

Johnson, Haynes, and Miller

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School District

3340 Forest Hill Boulevard, C316

West P alm Beach, Florida 33406 - 5869

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.