10-000998TTS Madison County School Board vs. Dr. James Brown Status: Closed Recommended Order on Friday, July 16, 2010.

Summary: Petitioner established just cause to terminate Respondent's employment as a teacher.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MADISON COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-0998

)

DR. JAMES BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing on April 13, 2010, in

Tallahassee, Florida, before Suzanne F. Hood, Administrative Law

Judge with the Division of Administrative Hearings.

For Petitioner: George T. Reeves, Esquire

Davis, Schnitker, Reeves &

Browning, P.A.

Post Office Box 652

Madison, Florida 32341-0652

For Respondent: Ronald G. Stowers, Esquire

Levine and Stivers, LLC

245 Virginia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Petitioner has "just cause" to terminate Respondent's employment.

PRELIMINARY STATEMENT

By letter dated February 2, 2010, Lou S. Miller, Superintendent of Madison County School District, advised

Respondent James Brown, Ph.D. (Respondent), that he was

suspended from his position as a teacher with pay. The letter

also advised Respondent that Petitioner Madison County School

Board (Petitioner) would determine at a February 2, 2010,

meeting, whether Respondent's suspension would continue with or

without pay, pending a termination hearing.

The February 2, 2010, letter stated that Ms. Miller was

requesting termination of Respondent's employment based on the

following allegations: (a) misconduct in office and willful

neglect of duty when he falsified his grade book with intent to

award credit for students who had no grades recorded for

classes; (b) failure to correct performance deficiencies related

to the proper recording of grades; (c) intentionally suppressing

or distorting subject matter relevant to a student's academic

program; (d) failing to keep students' personally identifiable

information confidential; and (e) submitting fraudulent

information.

Later, on February 2, 2010, Petitioner voted to suspend

Respondent's employment with pay pending a termination hearing.

In a letter dated February 11, 2010, Respondent requested a

formal administrative hearing.

On March 1, 2010, Petitioner referred Respondent's hearing

request to the Division of Administrative Hearings. An Initial

Order was issued on March 2, 2010.

On March 3, 2010, Petitioner filed a Motion to Determine

that the Petitioner Continues to Have Jurisdiction to Rule Upon

the Suspension of the Respondent or in the Alternative

Relinquish Jurisdiction to the Petitioner for Such Purposes. An

Order dated March 31, 2010, denied the motion.

On March 9, 2010, the undersigned issued a Notice of

Hearing. The notice scheduled the hearing for April 13, 2010.

During the hearing, Petitioner presented the testimony of

four witnesses. Petitioner offered seven exhibits, P1-P7, which

were accepted as evidence.

Respondent testified on his own behalf and presented the

testimony of two witnesses. Respondent offered one exhibit, R1,

which was accepted as evidence.

The parties subsequently advised that the court reporter

would be late in filing the Transcript due to a family

emergency. On June 14, 2010, the undersigned conducted a

telephone conference with the parties. During the conference,

the parties confirmed that they intended to file the Transcript.

The Transcript was filed on June 16, 2010. Respondent

timely filed his Proposed Recommended Order on June 28, 2010.

Later that day, Petitioner filed an Unopposed Motion for

Extension of Time to file its proposed findings of fact and

conclusions of law. An Order dated July 1, 2010, granted the

motion. Petitioner filed its Proposed Recommended Order on

July 7, 2010.

Hereinafter, all references shall be to Florida Statutes

(2009), except as otherwise noted.

FINDINGS OF FACT

1. At all times material here, Petitioner was the

constitutional entity authorized to operate, control, and

supervise the public schools in Madison County, Florida.

2. Respondent is an educator, certified by the Florida

Department of Education. During the 2008-2009 and 2009-2010

school years, Petitioner employed Respondent as a teacher at the

Madison Excel Alternative School (Excel).

3. Excel is a non-traditional school. Students who attend

Excel are behind academically or have other problems, requiring

removal from the regular school setting.

4. Instruction at Excel is self-paced and computer-based.

Teachers at Excel may be responsible for assisting students in

more than one subject during any one class period.

5. Typically, computer coursework makes up 75 percent of a

student's grade. The other 25 percent of a grade depends on the

student's participation and/or other student work.

6. Once a student completes a computer course, a report is

generated to verify completion with a satisfactory grade of at

least 70 percent. The student then must take an exam and pass

it. If the computer program does not have an internal

comprehensive exam, the teacher must generate an exam.

7. There were at least three different computer programs

used at Excel during the 2008-2009 school year. The A system

was the program used for computer-based instruction. Pinnacle

has been used as the official, computer-based grade book and

attendance record since the 2007-2008 school year.

Additionally, the MIS system was used to maintain the cumulative

permanent educational record for each student, including the

classes taken and the grades in each subject.

8. During the 2008-2009 school year, administrators

(principal and/or secretary) were responsible for enrolling

students in classes at Excel. This responsibility included

enrolling students at the beginning of a term, consistent with

students' academic programs and the Department of Education's

student progress requirements. The school administrators also

enrolled students in other courses when they completed course

work prior to the end of a term.

9. When an administrator enrolled a student in a

particular course, the administrator would also permit the

student access to the course material on the A system and add

the class to the computer-based grade book, Pinnacle.

10. The Pinnacle system only allows so many classes per

student per semester. When a student exceeds that number,

school administrators have to notify Petitioner's district

office to ensure that the student's grades are properly

recorded.

11. During most of the 2008-2009 school year, and prior

thereto, Respondent kept a hand-written grade book. He used the

grade book to record attendance as well as grades.

12. Petitioner's policy required teachers to put weekly

grades in Pinnacle for each student in each course. In the fall

of 2008, Respondent did not follow the policy; he refused to

enter a string of zeros when students, who were already behind,

continuously failed to make progress.

13. On or about February 17, 2009, the principal of Excel,

Elizabeth Hodge, gave Respondent a written reprimand. The

reprimand related to Respondent's failure to properly post

grades in Pinnacle, the computerized grading system. Respondent

ceased using his hand-written grade book at or about this time.

14. During the 2008-2009 school year, Q. F. and S. B. were

students at Excel in classes taught by Respondent. During the

first semester of that year, Respondent taught each student at

least three subjects. S. B. was in Respondent's first, third,

and sixth-period classes. Q. F. was in Respondent's second,

fourth, and fifth-period classes.

15. Respondent was S. B.'s teacher for Integrated Math 1

during the third period of the first semester of the 2008-2009

school year. S. B. earned a semester grade of 93 in Integrated

Math 1. With Respondent as her teacher, S. B. began, but did

not complete, Economics at Excel during the second semester of

the 2008-2009 school year.

16. Respondent was Q. F.'s teacher for Algebra 1-A during

the fourth period of the first semester of the 2008-2009 school

year. Q. F. earned a semester grade of 73 in Algebra 1-A. With

Respondent as her teacher, Q. F. began, but did not complete,

Biology at Excel during the second semester of the 2008-2009

school year.

17. During the 2009-2010 school year, Q. F. and S. B.

enrolled in Petitioner's high school. At that time, they were

no longer Respondent's students.

18. Upon commencement of the 2009-2010 school term, the

high school guidance staff placed S. B. into classes that

Pinnacle showed were appropriate. S. B. objected to her

placement, stating that she had taken some of the classes from

Respondent while enrolled in Excel.

19. In order to show that she had taken some of the

classes, S. B. went to Respondent and requested that he provide

the high school with a letter concerning the classes she took at

Excel. The letter he wrote, dated November 17, 2009, stated as

follows:

This is to acknowledge that I was the

instructor of record for [S. B.] in the

school year 2007-08 [sic]. She completed

the second semester of Biology and

Economics.

Our input system at Excel failed to

grant these credits due to employee turnover

and untimely submission of grades. At the

time, we were in the process of changing

principals and losing our data entry

personnel.

I can assure you that [S. B.] earned an

87 in Biology and 83 in Economics. We at

Excel regret any unnecessary inconvenience

that [S. B.] might have suffered.

20. The guidance staff at the high school could not

substantiate that S. B. had completed the classes referenced in

the November 17, 2009, letter. S. B. then approached Respondent

and requested documentation to confirm the matters set out in

the November 17, 2009 letter.

21. In response to the request, Respondent prepared a

letter dated January 11, 2010, which states as follows:

Conformation Record

The 3rd & 4th periods consisted of six

or seven different subjects. [S. B.] took

Economics.

(Economics, Pre-Algebra, Integrated

Math 1 & 2, Algebra A and B, Consumer Math &

Geometry).

22. Respondent attached a copy of a page from his grade

book to the January 11, 2010, letter. Respondent then gave the

letter and the grade book page in a sealed envelope to S. B. to

hand-deliver to the high school.

23. The grade book page attached to the January 11, 2010,

letter was for the fall semester of the 2008-2009 school term.

It shows a list of third-period student names, including S. B.,

with grades next to them under a list of courses entitled "Econ,

Pre-Algebra, Integrated Math." The term "Econ" is written in a

different pen than the other subjects. There is no way from

looking at the grade book page to know which student was taking

which class. According to Respondent, S. B.'s grades on the

page were for Economics.

24. The greater weight of the evidence indicates that no

grades for Economics were posted in Respondent's grade book or

any computerized system for any students listed on the grade

book page for the fall term of 2008. Instead, S. B. received

credit that semester for Integrated Math.

25. In the spring of 2009, the term during which

Respondent was reprimanded and forced to cease using his grade

book, S. B. attempted but did not complete course work for

Economics. Respondent failed to record any grades in Pinnacle

to show S. B.'s work in Economics.

26. Upon commencement of the 2009-2010 school year, the

guidance staff at the high school placed Q. F. in appropriate

classes according to Pinnacle. Q. F. objected to her placement,

stating that she had taken some of the classes from Respondent

at Excel.

27. Q. F. went to see Respondent. Q. F. requested

Respondent to provide the high school with a letter concerning

the classes she took while enrolled at Excel.

28. In response to Q. F.'s request, Respondent prepared a

letter dated January 13, 2010, and delivered it to the high

school. The letter advised the high school as follows in

relevant part:

This 2nd semester class shows (4th period)

as an example that . . . [Q. F.] was taking

Biology.

[Q. F.] had an 85 average in Biology.

The January 13, 2010, letter had a copy of the same page from

the grade book attached to it that was attached to the

January 11, 2010, letter concerning S. B.

29. The grade book page shows a list of fourth-period

student names, including Q. F., with grades next to them under a

list of courses entitled "Alg 1A-B/Consumer

Math/Biology/Geometry." There is no way from looking at the

grade book page to know which student took which class.

According to Respondent, Q. F.'s grades on the page were for

Biology.

30. Upon investigation, Respondent's staff determined that

no grades for Biology were posted for any fourth-period students

listed in the grade book page for the fall term of 2008.

Instead, Q. F. received credit for "Alg 1A-B." Respondent

confirmed Q. F.'s grade in Algebra 1 for the fall term of 2008.

31. For the spring term of 2009, Q. F. completed a half

credit in Biology. Respondent failed to have this attempt

properly entered into the computerized grading system.

32. Comparing a copy of the page from the grade book that

was attached to the January 13, 2010, letter, with a copy of the

page from the grade book that was attached to the January 11,

2010, letter, it is apparent that Respondent altered the former.

The alteration concerns the group of subjects listed over the

fourth-period students' names.

33. The grade book page attached to the January 11, 2010,

letter listed the following fourth-period subjects: Alg 1A-

B/Consumer Math/Geometry. The grade book page attached to the

January 13, 2010, letter listed the following subjects: Alg 1A-

B/Consumer Math/ Biology/Geometry.

34. Because the subject "Biology" appears in the copy of

the grade book page attached to the January 13, 2010, letter,

but not in the copy of the grade book page attached to the

January 11, 2010, letter, it is clear that it was added after

January 11, 2010. Additionally, the term "Biology" was not

simply added by writing it above the student names in pen.

Instead, Respondent admitted that he cut a strip from a back

page in the grade book, re-wrote the group of courses, and then

photocopied the grade book page so that it would appear as

through the subject "Biology" was always listed. Respondent

testified that he remembered that Q. F. had taken Biology, so he

was simply trying to "correct" the grade book.

35. Respondent attempted to intentionally deceive

Petitioner into awarding credit for classes that had not been

earned. He did this in the following ways: (a) stating in the

November 17, 2009, letter that S. B. had completed Economics and

Biology when this was not true; (b) attempting to substantiate

the falsehood by sending the January 11, 2010, letter and

attaching to it a copy of a page from his grade book that had

been altered by adding the term "Econ" to the subject line, then

falsely asserting that the page showed S. B.'s completion of

Economics; and (c) sending the January 13, 2010, letter and

attaching to it a copy of a page from his grade book that had

been intentionally altered by adding the term "Biology" to the

group of subjects above Q. F.'s name, then falsely asserting

that the page showed Q. F.'s completion of Biology.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2010).

37. Petitioner has the burden of proving that it has cause

to discipline Respondent and that Respondent's employment should

be terminated. See McNeill v. Pinellas County School Board , 678

So. 2d 476, 477 (Fla. 2nd DCA 1996); Sublett v. Sumter county

School Board , 644 So. 2d 1178, 1179 (Fla. 5th DCA 1995).

38. While the standard of proof applied to license

revocation cases is clear and convincing evidence, the standard

of proof applied to employment termination cases is a

preponderance of the evidence. See Ferris v. Austin , 487 So. 2d

1163 (Fla. 5th DCA 1986).

39. District school boards have authority to "operate,

control, and supervise all free public schools in their

respective districts and may exercise any power except as

expressly prohibited by the State Constitution or general law."

See § 1001.32(2), Fla. Stat. Such authority extends to

personnel matters and includes the power to suspend and dismiss

employees. See §§ 1001.42(5), 1012.22(1)(f), and 1012.23(1),

Fla. Stat.

40. Petitioner's Rule 6.38, entitled Suspension and

Dismissal, states as follows in relevant part:

7. Dismissal during the term of a

contract of a staff member shall be for

cause. Such dismissal shall include:

* * *

b. For an instructional employee

holding a professional services contract or

permanent status;

1. Misconduct in office;

* * *

4. Willful neglect of duty;

* * *

e. Other actions which substantially

impair the effectiveness of any employee

include but are not limited to the

following:

* * *

20. Failure to correct performance

deficiencies;

41. Respondent, as a certified teacher and member of the

instructional staff, cannot be dismissed during the school year

except 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.

See § 1012.33(1)(a), Fla. Stat.

42. Florida Administrative Code Rule 6B-1.006, Principles

of Professional Conduct for the Education Profession in Florida,

states as follows in pertinent part:

(3) Obligation to the student requires

that the individual:

* * *

(d) Shall not intentionally suppress

or distort subject matter relevant to a

student's academic program.

* * *

(i) Shall keep in confidence

personally identifiable information obtained

in the course of professional service,

unless disclosure serves professional

purposes or is required by law.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(h) Shall not submit fraudulent

information on any document in connection

with professional activities.

43. Florida Administrative Code Rule 6B-4.009, Criteria

for Suspension and Dismissal, states as follows in relevant

part:

The basis for charges upon which

dismissal action against instructional

personnel may be pursued are set forth in

[Section 1012.33] Florida Statutes. The

basis for each of such charges is hereby

defined:

* * *

(3) Misconduct in office is defined as

a violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1001, 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 service in the

community.

(4) Gross insubordination of willful

neglect of duty is defined as a constant or

continuing intentional refusal to obey a

direct order, reasonable in nature, and

given by and with proper authority.

44. Respondent's behavior in this case rises to the level

of misconduct in office for the following reasons: (a) he

intentionally misrepresented subject matter relevant to

students' academic programs; and (b) he submitted false

information in letters in connection with professional

activities.

45. Petitioner's testimony that he personally observed

S. B.'s work in Economics and Q. F.'s work in Biology in the

fall of 2008 is not credible. Under the facts of this case,

Respondent cannot argue that he merely was mistaken about which

semester the students attempted the respective courses. The

more persuasive evidence indicates that Respondent intentionally

altered his grade book and attempted to mislead Petitioner about

the students' academic progress.

46. Respondent not only failed to keep adequate records in

his grade book, but he altered that record then relied upon it

to substantiate a falsehood that he otherwise could not prove.

Respondent's actions here were so serious as to impair his

effectiveness in the school system.

47. Finally, Respondent has willfully neglected his duty

as a teacher by failing to properly record students' grades

after receiving a written reprimand, directing him to routinely

enter grades in Pinnacle, the computerized grading system.

Respondent's failure to correct his performance deficiencies

substantially impaired his effectiveness as a teacher.

48. Petitioner has met its burden of proof in this case.

There is "just cause" to terminate Respondent's employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order terminating

Respondent's employment.

DONE AND ENTERED this 16th day of July, 2010, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 16th day of July, 2010.

COPIES FURNISHED :

Ronald G. Stowers, Esquire

Levine & Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

George T. Reeves, Esquire

Davis, Schnitker, Reeves &

Browning, P.A.

Post Office Box 652

Madison, Florida 32341-0652

Lou S. Miller, Superintendent

District School Board of Madison County

210 Northeast Duval Avenue

Madison, Florida 32340

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.