10-010089TTS Manatee County School Board vs. Joyce Taylor Status: Closed Recommended Order on Friday, February 25, 2011.

Summary: Petitioner established just cause to terminate Petitioner's employmnet based on her failure to report suspected child abuse and her disclosure to suspected abuser of the identity of the person who did report it.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10089

)

JOYCE TAYLOR , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice , a final hearing was held in this case

on January 25, 2011, in Bradenton, Florida, before

Administrative Law Judge Elizabeth W. McArthur of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Scott A. Martin, Esquire

Manatee Coun ty School Board

Post Office Box 9069

Bradenton, Florida 34206

For Respondent: Peter J. Lombardo, Esquire

Law Office of Peter Lombardo

1101 Sixth Avenue West, Suite 204

Bradenton, Florida 34205

STATEMENT OF THE ISSU E

The issue in this case is whether Petitioner has just cause

to terminate Respondent's employment.

PRELIMINARY STATEMENT

By letter dated October 4, 2010, the s uperintendent of

Schools for Manatee County, Tim McGonegal (Superintendent),

notified Joyce Taylor (Ms. Taylor or Respondent) that he

intended to recommend her termination from employment as a

cafeteria manager for the reasons set forth in an Administrative

Complaint served with the letter. The Administrative Complaint,

issued by the Manatee Cou nty School Board (School Board or

Petitioner), alleged that Respondent failed to immediately

report suspected abuse of a student; Respondent violated the

confidentiality of a person working under Respondent's

supervision who did report the suspected abuse of the student;

and Respondent failed to fully cooperate with the investigation

of these matters in violation of several cited statutes and

rules. The Administrative Complaint asserted that these alleged

violations provided just cause to terminate Respond ent's

employment.

Respondent timely requested an administrative hearing to

contest the allegations in the Administrative Complaint. The

case was forwarded to the Division of Administrative Hearings

for assignment of an Administrative Law Judge to conduct the

hearing requested by Respondent.

At a School Board meeting at which Respondent appeared, the

School Board determined that Respondent would be suspended

without pay pending the outcome of the administrative hearing.

Respondent's suspension without pay began on October 26, 2010.

Prior to the final hearing, the parties entered into a

Joint Prehearing Stipulation in which they stipulated to several

facts and legal conclusions. The parties' stipulations have

been incorporated into this Recommended O rder to the extent

relevant.

At the final hearing, Petitioner presented the testimony of

Beth Haisley, Monique Rhodes, Debra Horne, Tim McGonegal, Rusty

Moore, and Respondent. Petitioner's Exhibits 1 and 2 were

received into evidence. Respondent testifi ed on her own behalf

and also presented the testimony of Betty Farlow - Greene, Scott

Taylor, and Mary Jane Cardarelle - Hermans. Respondent's

Exhibits 1 through 13 were received into evidence.

The final hearing was recorded, but neither party arranged

for a court reporter or transcript of the final hearing.

Petitioner timely filed its Proposed Recommended Order, and

Respondent timely filed a Proposed Order and Argument. These

post - hearing submissions have been considered in the preparation

of this Recommen ded Order.

FINDINGS OF FACT

1. Respondent has been employed by the School Board as a

cafeteria manager at Lee Middle School. She was hired on

August 17, 2009, at the beginning of the school year. In just

over one year of employment, Respondent has no disciplinary

history and has one adequate performance evaluation.

2. In her managerial position, Respondent supervises

several other employees who work in the cafeteria, including

Beth Haisley (Ms. Haisley) and Monique Rhodes (Ms. Rhodes).

Ms. Taylor's immediate supervisor is Ryan Beaman (Mr. Beaman),

and Mr. Beaman's supervisor is food service specialist , Rusty

Moore (Mr. Moore). Mr. Moore reports to Sandy Ford, who is the

director of the food services department.

3. Near the end of the 2009 - 2010 sc hool year, Ms. Rhodes

was having some troubles with her foster daughter, who is known

as "T." T., a 14 - year - old student at Lincoln Middle School, was

apparently caught having sex with an 18 - year - old man.

Ms. Rhodes kept T. out of school for several days and brought T.

to work with her at the Lee Middle School cafeteria, where T.

was permitted by Ms. Taylor to do some work as a volunteer.

4. Because of the troubles Ms. Rhodes was having with T.,

Ms. Taylor offered to keep T. at her home over the Memorial Day

weekend, and Ms. Rhodes agreed.

5. While Ms. Taylor was helping T. put on a pair of

earrings, she noticed a scar on T.'s neck. Ms. Taylor asked T.

what had happened, and T. responded that her mother beat her.

6. Ms. Taylor said that T. told her that T. had spoken to

her counselor about it and that the counselor had taken care of

it. Ms. Taylor did not know whether T. was referring to a

school counselor or some other kind of counselor; Ms. Taylor did

not ask T. anything more about it.

7. On th e Monday after the Memorial Day weekend

Ms. Taylor sought out Ms. Haisley the first thing that morning

to tell Ms. Haisley about T.'s scar and about Ms. Taylor's

conversation with T. about how it happened. Ms. Taylor also

told Ms. Haisley that at the end of the weekend, T. got upset

and was crying when it was time to leave to go back home to

Ms. Rhodes.

8. Ms. Haisley asked Ms. Taylor if she was going to call

the Child Protective Services (CPS) hotline to report the

matter. Ms. Taylor responded that she was not sure that she

wanted to call, because she was afraid of Ms. Rhodes.

9. Ms. Haisley followed up a few days later, calling

Ms. Taylor and asking her again about calling the CPS hotline to

report what she had observed and what T. had said. Ms. Taylor

said she still had not decided whether she would call and that

she would discuss it with her husband. Ms. Haisley expressed

her concern to Ms. Taylor and told her that if Ms. Taylor did

not make the call, she (Ms. Haisley) might have to.

10. Ms. Taylor never did place a call to the CPS hotline

to report the suspected abuse of T.

11. In none of the con v er s ations between Ms. Haisley and

Ms. Taylor did Ms. Taylor ever say that she did not have a

reasonable suspicion that T. may have been abused b y Ms. Rhodes.

Ms. Taylor never told Ms. Haisley that it was unnecessary or

inappropriate to call the CPS hotline because the circumstances

did not warrant a call.

12. The greater weight of the credible evidence is that

Ms. Taylor had a reasonable suspi cion that T. may have been

abused by Ms. Rhodes, but did not call the CPS hotline for the

sole reason that she was afraid to accuse Ms. Rhodes.

13. In approximately the second week of June, after

Ms. Haisley tried twice but could not get Ms. Taylor to say she

was going to call the CPS hotline, Ms. Haisley called the CPS

hotline herself. Like Ms. Taylor, Ms. Haisley was concerned

about making the call and sought immediate assurance from the

hotline counselor that Ms. Haisley's identity would be kept

confid ential. Ms. Haisley told no one about the call, not even

her husband.

14. Ms. Haisley did not call the CPS hotline sooner

because she thought that it was Ms. Taylor's obligation to call ,

and Ms. Haisley hoped that Ms. Taylor would follow through.

15. Bo th Ms. Haisley and Ms. Taylor were made aware of the

obligation to report suspected child abuse, as this obligation

ha d been a priority and point of emphasis by the School Board.

The obligation is codified in a School Board rule in the Policy

and Procedur e Manual applicable to School Board personnel. In

addition, the subject is emphasized in employee training

sessions, seminars, and meetings. For example, Ms. Haisley

described a meeting in October 2009 attended by both Ms. Haisley

and Ms. Taylor, at whic h the Lee Middle School principal, Scot

Boice, spoke of the CPS hotline and the obligation to call and

report suspected child abuse of any student. Flyers were handed

out at this meeting to repeat the message, providing the hotline

number , and emphasizing that calls were confidential.

Ms. Taylor confirmed that she was at this meeting and received a

flyer. Although Ms. Taylor first stated that there was no

discussion about the obligation to report suspected abuse to the

CPS hotline, she later admitted tha t the subject was

"mentioned."

16. After Ms. Haisley called the CPS hotline to report the

suspected abuse of T., as it had been described to her by

Respondent, CPS conducted an investigation of Ms. Rhodes and T.

They examined the mark on T.'s neck, and bo th T. and Ms. Rhodes

claimed to not know how it got there. Ms. Rhodes guessed that

T. may have gotten the mark when T. had the sexual encounter

with the 18 - year - old in the spring of 2010, suggesting that the

mark appeared to be recent.

17. Ms. Rhodes was incensed by the investigation and

immediately jumped to the conclusion that Ms. Taylor must have

called the CPS hotline, because T. had just spent the weekend

with Ms. Taylor. Ms. Rhodes called Ms. Taylor, and in a

profanity - laced tirade, accused Ms. Tayl or of calling CPS.

Ms. Rhodes wanted to know how Ms. Taylor could do that when they

were friends. Respondent denied having made the call to the CPS

hotline, but Ms. Rhodes did not believe her.

18. Ms. Taylor testified that she felt threatened by

Ms. Rhod es' call. At the final hearing, Ms. Taylor testified

that Ms. Rhodes said she would "kick her ass"; during the School

Board's investigation, Ms. Taylor only said that Ms. Rhodes

threatened to get back at Ms. Taylor for having called the CPS

hotline. At t he final hearing, Ms. Rhodes acknowledged that she

was angry and hurt and that she thoroughly "cussed out"

Ms. Taylor, but Ms. Rhodes adamantly denied having made any

threats to Ms. Taylor, physical or otherwise.

19. Ms. Taylor admitted that after the phon e call, she

embarked on a campaign to find out who had placed the call to

the CPS hotline and that she was determined to figure out who

had made the call.

20. The first call Ms. Taylor made was to Ms. Haisley, who

had told Ms. Taylor that she might have to call the hotline if

Ms. Taylor would not make the call. Ms. Taylor asked

Ms. Haisley if she called the CPS hotline, and Ms. Haisley at

first asked, "What if I did?" Ms. Taylor then told Ms. Haisley

about Ms. Rhodes' profanity - laden accusations to Ms. Taylor.

Ultimately, Ms. Haisley admitted that she had called the CPS

hotline to report what Ms. Taylor had told her about T.

Ms. Haisley credibly testified that she disclosed this

information to Ms. Taylor at least, in part, because Ms. Taylor

was her su pervisor, and Ms. Haisley felt obliged to answer her

supervisor's questions truthfully. Although Ms. Haisley did not

expressly demand that Ms. Taylor keep this information

confidential, Ms. Haisley believed that Ms. Taylor would not

disclose the informati on to others, least of all to the

suspected abuser.

21. Shortly thereafter, Respondent called Ms. Haisley

again. This time, Respondent told Ms. Haisley that she needed

to call Mr. Moore to tell him that Ms. Haisley, not Ms. Taylor,

had called the CPS hotl ine to report suspected abuse by

Ms. Rhodes. Ms. Haisley attempted to comply with what her

supervisor asked. Ms. Haisley spoke to Mr. Moore on the phone

and started to tell him what Ms. Taylor wanted her to tell him,

but Mr. Moore cut off Ms. Haisley whe n she mentioned the CPS

hotline and said he did not want to hear about it, because it

was confidential.

22. The evidence was unclear regarding what prompted

Ms. Taylor to try to get Ms. Haisley to disclose this

information to Mr. Moore . According to Ms. T aylor, she knew

that Ms. Rhodes had a meeting scheduled with Mr. Moore, and

Ms. Taylor assumed that the meeting was about the CPS hotline

call. Ms. Taylor was mistaken. The meeting was to address

problems with Ms. Rhodes' job performance. Mr. Moore admo nished

Ms. Rhodes to be a better worker for Ms. Taylor, and he told

Ms. Rhodes to talk to Ms. Taylor over the summer to apologize

and clear the air. Mr. Moore and Ms. Rhodes testified

consistently that the subject of the CPS hotline call and

investigation did not come up at this meeting.

23. Over the summer, Ms. Rhodes tried to call Ms. Taylor,

as suggested by Mr. Moore. When Ms. Rhodes could not reach

Ms. Taylor on the phone, she had her cousin , Betty , contact

Ms. Taylor to coordinate a meeting at a Taco Bell. At the Taco

Bell meeting, Ms. Taylor, who by then had succeeded in her

campaign to find out who had called the CPS hotline, brought up

the subject and disclosed to Ms. Rhodes that Ms. Haisley was the

one who called the CPS hotline.

24. At the final hearing, Ms. Taylor testified that it was

Ms. Rhodes, not Ms. Taylor, who named Ms. Haisley as the one who

called the CPS hotline and that Ms. Taylor only said in response

that she would not deny that it was Ms. Haisley who called the

CPS hotline. Ms. Ta ylor's testimony that she was not the one

who first identified Ms. Haisley was not credible. Ms. Rhodes

credibly testified that Ms. Taylor was the one to name

Ms. Haisley as the hotline caller. Ms. Rhodes' cousin, Betty,

who was there at the beginning of the meeting, confirmed that

Ms. Taylor was the one who first named Ms. Haisley. The greater

weight of the credible evidence establishes that Ms. Taylor

purposely disclosed Ms. Haisley's identity as the CPS hotline

caller to Ms. Rhodes.

25. Ms. Taylor tes tified that at the Taco Bell meeting,

after Ms. Rhodes came to understand that it was Ms. Haisley who

had called the CPS hotline, Ms. Rhodes began threatening

Ms. Haisley, saying she was "gunning for" Ms. Haisley. In other

words, according to Ms. Taylor, Ms. Rhodes redirected to

Ms. Haisley the sort of threatening remarks she had made to

Ms. Taylor in the profanity - laced phone call earlier in the

summer. Yet, Ms. Taylor did not say that Ms. Rhodes had been

threatening her at the Taco Bell meeting before M s. Taylor

disclosed that Ms. Haisley was the real CPS caller. Instead,

Ms. Taylor described the meeting, before she named Ms. Haisley,

as calm and relaxed, with Ms. Taylor and Ms. Rhodes engaging in

chit - chat. Perhaps because Ms. Rhodes was ultimately cl eared of

any wrongdoing in the CPS investigation, she had calmed down

about it. According to Ms. Rhodes, the only thing she told

Ms. Taylor in reaction to learning it was Ms. Haisley who had

made the call to CPS was that Ms. Rhodes would have "zero

tolera nce" for Ms. Haisley - Î that Ms. Rhodes was "done with her."

26. Ms. Taylor claims to have been "shocked" and

"dumbfounded" by the threats Ms. Rhodes allegedly directed to

Ms. Haisley. As a result, in August, shortly before school

started, Ms. Taylor called Ms. Haisley to let her know that

Ms. Taylor had disclosed her identity as the CPS hotline caller

to Ms. Rhodes and to warn her that Ms. Rhodes said she was

"gunning for" for Ms. Haisley. Ms. Haisley felt "thrown under

the bus" by her supervisor and was v ery fearful because of the

threats described by Ms. Taylor.

27. After school started in August 2010, work relations in

the cafeteria were very strained. Ms. Rhodes would not talk to

Ms. Haisley in keeping with her "zero tolerance" approach.

Things were a lso very tense between Ms. Haisley and her

supervisor. Respondent repeatedly criticized Ms. Haisley for

having called the CPS hotline, saying both Respondent and

Ms. Haisley would be fired because of it.

28. Ms. Haisley called Mr. Moore to request a meeti ng to

discuss the situation because of the emotional pressure placed

on her. A meeting was held between Ms. Haisley, Mr. Moore, and

food services director , Sandy Ford. Ms. Haisley described the

circumstances that led to her calling the CPS hotline; the

p ressure from Ms. Taylor to tell her that Ms. Haisley had called

the hotline; Ms. Taylor's disclosure to Ms. Rhodes that

Ms. Haisley called the hotline; and Ms. Rhodes' threats, as

described by Ms. Taylor. Mr. Moore told Ms. Haisley that by

admitting that she had called CPS, that information was no

longer confidential. Ms. Haisley responded that she had nothing

to lose, because Ms. Rhodes already knew that Ms. Haisley

called CPS.

29. Immediately after this meeting, Mr. Moore contacted

the School Board's Of fice of Professional Standards (OPS) to

investigate the alleged threats made by Ms. Rhodes 1 / and to

investigate Ms. Taylor's failure to call the CPS hotline and

disclosure to the suspected abuser of the identity of the person

who had called the CPS hotline .

30. Respondent was placed on paid administrative leave

pending the School Board's investigation into this matter. As a

result of the investigation, the action on the investigation by

a panel of persons in Respondent's chain of command and the

concurrenc e of the s uperintendent with the chain - of - command

panel's recommendation, the Administrative Complaint was

prepared. Following service of the Administrative Complaint on

Respondent and her election to contest the allegations in an

administrative hearing, the School Board voted to suspend

Respondent without pay as of October 26, 2010, pending the

outcome of the administrative hearing.

31. The charges in the Administrative Complaint are

primarily based on Ms. Taylor's failure to call the CPS hotline

to repor t her reasonable suspicion of child abuse and also on

Ms. Taylor's disclosure of Ms. Haisley's identity as the hotline

caller to the suspected abuser.

32. Ms. Taylor offered an assortment of explanations for

not calling the CPS hotline. The explanations a re somewhat

inconsistent with each other and some of the explanations were

not provided by Ms. Taylor during the investigation. Ms. Taylor

claimed that the scar she observed did not give rise to a

reasonable suspicion of child abuse; or that she had in th e past

reported more severe signs of child abuse to CPS, which did not

pursue an investigation (suggesting that she should be excused

from reporting anything but very severe signs of child abuse

because she could assume CPS would do nothing again); or that

because T. said that she told a counselor all about it and the

counselor had taken care of it, whatever child abuse may have

occurred had been handled by someone else; or that because T.

said that her mom beat her, and Ms. Taylor knew that T. did not

refe r to her foster mother as "mom," T. must have meant her

biological mother and must have been referring to a long - past

incident.

33. Ms. Taylor's explanations are not credible. The scar

that Ms. Taylor observed on T.'s neck was at least significant

enough to cause Ms. Taylor to ask T. how she got the scar. When

T. responded that it was from where her mother beating her, it

defies credibility that Ms. Taylor would have simply accepted

that statement and assumed, without asking, that T. was talking

about a long - past incident involving her biological mother.

T.'s response, standing alone, is a clear indication of abuse,

leaving only the questions of when and by which "mother" -- years

ago by the biological mother or within the past few years by the

foster mot her? These questions were neither asked nor answered.

T.'s statement, standing alone, created at least a reasonable

suspicion of child abuse by the foster mother with whom T. had

been living for the past several years.

34. Ms. Taylor's alternative expla nation that she did not

think she needed to call the CPS hotline because T. stated that

she had told a counselor and the counselor took care of it , is

an inadequate rationale for not calling the CPS hotline. First,

there was insufficient information to pr ovide the reassurance

that Ms. Taylor claimed to have drawn from T.'s statements.

What kind of counselor did T. talk to, when did this occur, and

what was the resolution? But more importantly, this explanation

appears to acknowledge that there was a repo rtable incident. As

such, the fact that someone else may have also reported it or

may have done something to "take care of it," does not excuse

Ms. Taylor from reporting what she observed and what she was

told by T. to the CPS hotline.

3 5 . Ms. Taylor's e xplanations do not square with

Ms. Haisley's testimony regarding Ms. Taylor's actions in the

days and weeks following Ms. Taylor's Memorial Day weekend

with T. Ms. Haisley credibly testified that first thing on

Monday morning, Ms. Taylor brought up the in cident, telling

Ms. Haisley about T.'s scar and T.'s statement that her mother

beat her, and also, about T. getting upset at the end of the

weekend when it was time to go home to Ms. Rhodes. Ms. Haisley

was left with the impression that Ms. Taylor was con cerned

about T. and suspected child abuse by her foster mother, an

impression that was reasonable under the circumstances.

3 6 . Ms. Taylor attempted to refute Ms. Haisley's testimony

about the Monday morning conversation. Ms. Taylor testified

that she did not bring up the incident, but rather Ms. Haisley

was asking her questions, and she answered the questions by

mentioning the scar and T.'s statement that her mother beat her.

Ms. Taylor testified that the conversation was just a casual,

every - day convers ation, but she could not remember what

questions were asked that would have caused her to casually

refer to a scar and to T.'s explanation for the scar that her

mother beat her. But a scar caused by being beaten by one's

mother is not the stuff of casual, every - day conversations; it

is difficult to imagine a casual, every - day conversation in

which a question would elicit such a response.

3 7 . When Ms. Taylor was investigated by the School Board,

she described the Monday morning conversation with Ms. Haisle y

differently:

After Memorial Day Weekend, Beth [Haisley]

asked me a direct question. . . Beth asked,

"Do you know anything about Monique, her

children, or abuse?" Beth also said that

she heard 'stuff' in the cafeteria worker's

lounge during lunchtime. Beth told me the

conversations disturbed her and that the

conversations were in regard to Monique. . .

I told Beth that I saw a mark on [T's] neck.

. . . I told Beth that I asked the child

what happened. The child told me her mom

beat her. The child sai d that she had told

her counselor this and the counselor took

care of it.

This version, given by Ms. Taylor at an interview on August 25,

2010, refutes the notion that Ms. Taylor did not associate the

scar or T.'s statement that her mom beat her , with T.' s foster

mother, Monique Rhodes.

3 8 . Ms. Taylor attempted to excuse her disclosure of

Ms. Haisley's identity to the suspected abuser by asserting that

Ms. Haisley volunteered her identity to Ms. Taylor as the

hotline caller and never told Ms. Taylor to ke ep that

information confidential. Ms. Haisley's ultimate admission to

her supervisor, who pressed her for the information, was not

truly voluntary. Even though Ms. Haisley did not express to

Ms. Taylor that the disclosure was for Ms. Taylor only and

shou ld be kept confidential, that condition should have gone

without saying under the circumstances. Ms. Haisley certainly

never gave Ms. Taylor permission to disclose her identity as the

CPS caller to anyone else, least of all to the suspected abuser.

39 . Ms. Taylor also seems to argue that her disclosure to

Ms. Rhodes was justified because of Ms. Rhodes' threats to

Ms. Taylor. While Ms. Taylor may have subjectively felt

threatened by Ms. Rhodes, any fears she may have felt do not

excuse her actions in em barking on a campaign to redirect the

threats from herself to Ms. Haisley. Ms. Taylor knowingly and

intentionally threw her subordinate under the proverbial bus:

she admittedly made it her business to figure out who called the

CPS hotline; she wrangled th e information out of her

subordinate; and then she proceeded to turn that information

over to the person she thought would do harm as a result. And

yet, she inexplicably claimed to be "shocked" and "dumbfounded"

when Ms. Rhodes allegedly threatened Ms. Ha isley after

Ms. Taylor revealed who had made the call.

4 0 . Inconsistencies, such as this, cast doubt on whether

there really were fear and threats, but regardless, even if

Ms. Taylor was legitimately concerned about threatening

behavior, that would be e ven more reason to take seriously the

reasonable suspicions with regard to T., a young girl under the

care of the supposedly threatening subject. Furthermore, fear

of threatening behavior should have caused a supervisor to

protect her subordinate, rather than take actions to redirect

whatever threats actually existed to the subordinate and away

from the supervisor. If Ms. Taylor's fears were genuine, the

only appropriate action would have been to bring the matter to

the attention of any and all supervisor y personnel in the school

system, and, if deemed necessary, law enforcement personnel.

4 1 . Ms. Taylor claimed that she reported Ms. Rhodes'

threats to Mr. Moore, although she was confused about when that

was. The Administrative Complaint charges Ms. Tay lor with

providing misleading statements in the investigation on this

subject, but the evidence was inconclusive in this regard.

4 2 . Ms. Taylor seems to argue that she only acted to

discover and disclose Ms. Haisley's identity as the CPS hotline

caller af ter Ms. Haisley reported the threats to Mr. Moore and

nothing was done. That argument is rejected as inconsistent

with the facts and insufficient to justify Ms. Taylor's actions.

Ms. Rhodes' profanity - laced call to Ms. Taylor occurred after

school was ou t for the summer. Ms. Taylor immediately embarked

on her campaign to identify the hotline caller and wrangled the

information out of Ms. Haisley. Ms. Taylor met with Ms. Rhodes

at Taco Bell and disclosed Ms. Haisley's identity as the hotline

caller, whil e school was still out for the summer. Ms. Taylor

obviously was not waiting around to see if anything would be

done through school channels about Ms. Rhodes.

4 3 . Moreover, Mr. Moore was not Ms. Taylor's immediate

supervisor. No explanation was provided regarding why

Ms. Taylor did not report her claimed fears about Ms. Rhodes'

threatening behavior to her supervisor, Mr. Beaman, or to the

food services director, Sandy Ford, or to the school principal,

Scot Boice. 2 / Any and all of these actions would have been

proper responses to alleged threats; throwing one's subordinate

under the bus was not a proper or justifiable response.

4 4 . The superintendent described the policy objectives at

issue in this case. He explained that the School Board takes

very seri ously its role, standing in loco parentis, to protect

and ensure the safety of Manatee County students. These policy

objectives are so strongly implicated when it comes to suspected

child abuse that the School Board adopted its own rule to

emphasize to it s employees that they are required to immediately

call the CPS hotline to report suspected child abuse, even

though Florida statutory law already imposes a similar

obligation.

4 5 . The superintendent was emphatic about the critical

importance of the School Board insisting that its employees

follow through on their obligation to report reasonable

suspicions of child abuse. He was equally emphatic about the

serious nat ure of Respondent's actions in not immediately

reporting suspected child abuse and then dis closing the identity

of her subordinate to the suspected abuser as the one who made

the call Respondent should have made.

4 6 . Based on the extremely serious nature of these two

charged violations, the s uperintendent did not hesitate to

recommend the termi nation of Respondent's employment as the

appropriate disciplinary response. The absence of other

disciplinary problems during Ms. Taylor's brief tenure with the

School Board and her single adequate performance evaluation,

were not sufficiently weighty fac tors in her favor to overcome

the seriousness of the violations. The superintendent credibly

described how Ms. Taylor had done permanent harm to her ability

to effectively manage within the school system, by throwing a

subordinate under the bus and breach ing the confidentiality of a

CPS hotline call. If Ms. Taylor's actions were excused or

subject to a lesser penalty, there would be a chilling effect on

other employees following through on their obligation to report

suspected abuse, because employees woul d have no assurance that

their confidentiality would be honored and protected.

CONCLUSIONS OF LAW

4 7 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat . (2010). 3/

4 8 . In this proceeding, Petitioner seeks to terminate

Respondent's employment. Petitioner bears the burden of proof,

and the standard of proof is by a preponderance of the evidence.

McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fl a. 2d

DCA 1996); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla.

3d DCA 1990).

49 . The School Board has the authority to "operate,

control, and supervise all free public schools in their

respective districts and may exercise any power except as

expr essly prohibited by the State Constitution or general law."

§ 1001.32(2), Fla. Stat., implementing Art. IX, § 4(b), Fla.

Const.

5 0 . Pursuant to section 1012.27(5), Florida Statutes, the

superintendent is authorized to recommend to the School Board

that a n employee of the School Board should be suspended or

dismissed from employment. The School Board, in turn, has the

authority to suspend or terminate School Board employees

pursuant to section 1012.22(1)(f).

5 1 . Pursuant to School Board Policy 6.11, "ju st cause" is

the standard for disciplinary action against School Board

employees, including Respondent.

5 2 . The School Board has discretion in setting standards

for what constitutes "just cause" for taking disciplinary action

against employees, includin g suspension or termination. See

Dietz v. Lee Cnty. Sch. Bd. , 647 So. 2d 217, 218 (Fla. 2d DCA

(1994) (Blue, J. concurring); see also § 1012.23(1) (authorizing

district school boards to adopt rules governing personnel

matters, except as otherwise provided by law or the State

Constitution).

5 3 . Pursuant to School Board Polic y 6.11(1) and

6.11(12)(c), just cause for termination from employment

includes, among other things, "misconduct in office, . . .

violation of the Policies and Procedures Manual of the S chool

District of Manatee County, violation of any applicable Florida

statute, [or] violation of the Code of Ethics and the Principles

of Professional Conduct of the Education Profession in Florida."

5 4 . The Administrative Complaint charges Respondent wit h

violating sections 39.201 and 39.202, Florida Statutes, and

School Board Policy 5.2, relating to the obligations to report

suspected child abuse and to maintain confidentiality of the

reporter.

5 5 . Section 39.201 provides that any person who has

"reasona ble cause" to suspect child abuse is required to report

that suspicion to the central abuse hotline, by calling the

single statewide toll - free number that exists to field such

calls. Section 39.202 requires that the name of the person

making the call to t he hotline be kept confidential.

5 6 . To underscore the importance of this statutory

obligation in the school setting, the School Board has adopted

its own rule emphasizing these obligations to its employees.

School Board Policy 5.2 provides in pertinent p art:

All school employees have a serious

affirmative duty to report suspected child

abuse.

* * *

(1) Mandatory Duty to Report Suspected

Child Abuse

All employees or agents of the district

school board who have reasonable cause to

suspect abuse have an affirmative duty to

report it. . .

(2) Complaints of Child Abuse Reported to

an Employee

An employee receiving a complaint or report

of child abuse shall inquire of the

reporting party as to the details of his/her

concern but shall not investigate further.

If the employee has reasonable cause to

suspect that child abuse has occurred based

upon the description by the reporting party,

the employee must report.

* * *

(4) Employee Responsible for Reporting

It is the responsibility of the first

employee who has "reasonable cause" to

suspect abuse to report it to the hotline

and to do so immediately. It is

unacceptable and violation of the law to

simply report suspicions to any other

individual (including law enforcement or

your supervisor) and a sk or expect them to

make the report to the hotline. After

making a report, the school board employee

must inform the principal, supervisor, or

other building administrator. If the

suspected abuser is a district employee, the

supervisor of the reporter w ill notify

his/her director who will notify the Office

of Professional Standards.

* * *

(6) Penalties for Failure to Report

Any employee who is required to report and

fails to do so may be found guilty of a

misdemeanor . . . Failure to report chil d

abuse as required will also subject the

employee to disciplinary action.

(7) Duty to Cooperate with Investigations

Employees have a duty to cooperate with

investigations. . . Names of persons

reporting to the hotline will not be

disclosed without the ir permission.

5 7 . Petitioner met its burden of proving, by a

preponderance of the evidence, that Respondent violated sections

39.201 and 39.202 and School Board Policy 5.2, by not

immediately reporting suspected child abuse to the CPS hotline,

despite r easonable cause for doing so and by breaching the

confidentiality of Ms. Haisley and disclosing her identity to

the suspected abuser without Ms. Haisley's permission. Indeed,

under the School Board's Policy 5.2(4), Ms. Taylor's obligation,

upon learning t hat Ms. Haisley had called the hotline, was to

report the call to the food services director so that an OPS

investigation could be initiated. This is a limited reporting

obligation within defined reporting channels, and it plainly

does not negate the conf identiality that otherwise must be

honored and protected absent clear permission by the hotline

caller.

5 8 . These violations of pertinent statutes and of a key

policy in the School Board's Policies and Procedure Manual are

sufficient in and of themselves to constitute "just cause" as

defined in School Board Policy 6.11.

5 9 . The Administrative Complaint charges that these same

two violations also constituted misconduct in office. School

Board Policy 6.11 uses, but does not define "misconduct in

office." That phrase is defined for similar purposes in Florida

Administrative Code Rule 6B - 4.009(3), and that rule definition

is instructive. "Misconduct in office" is defined as a

violation of the Code of Ethics of the Education Profession or

the Principles of Professional Conduct for the Education

Profession in Florida, which is so serious as to impair the

individual's effectiveness in the school system.

60 . The referenced Code of Ethics is codified in Florida

Administrative Code Rule 6B - 1.001. The Princip les of

Professional Conduct of the Education Profession in Florida is

codified in Rule 6B - 1.006. Although these rules, by their

terms, apply to instructional personnel, the School Board's

Policy 6.11 extends the scope of these rules to apply to all

person nel, including non - instructional personnel such as

Respondent.

61 . Petitioner has met its burden of proving that the

violations found above are also violations of Rule 6B - 1.001(2)

of the Code of Ethics. This rule requires that the employee's

primary prof essional concern will always be for the student and

that the employee must exercise the best professional judgment

and integrity. In this case, Respondent was shown to have acted

with primary concern for her own well - being, not for the

student. Moreover, her professional judgment suffered for the

same reason when she breached the confidentiality of her

subordinate.

6 2 . Petitioner has also met its burden of proving that the

violations found above are also violations of Rule

6B - 1.006(3)(a) of the Principle s of Professional Conduct, which

requires that the employee make reasonable effort to protect

students from conditions harmful to the student's mental or

physical health or safety. Respondent did not make reasonable

effort s to protect T.

6 3 . Petitioner m et its burden of proving that the

foregoing violations of the Code of Ethics and Principles of

Professional Conduct were so serious as to impair Respondent's

effectiveness in the school system, for the reasons explained by

the superintendent, as found abov e. Thus, Petitioner met its

burden of proving that Respondent engaged in "misconduct in

office" within the meaning of School Board Policy 6.11.

6 4 . The Administrative Complaint also charged Respondent

with violating several provisions of the Code of Ethi cs and

Principles of Professional Conduct by giving misleading

statements during the investigation with regard to whether and

when she reported Ms. Rhodes' alleged threats to Mr. Moore. The

evidence was inconclusive on this point and insufficient to

prove the charge by a preponderance of the evidence.

6 5 . As explained by the superintendent, Respondent's

violations in failing to report suspected child abuse and in

disclosing Ms. Haisley's identity as the hotline reporter to

Ms. Rhodes, the suspected abuser , were so serious that the

appropriate disciplinary measure is termination of Respondent's

employment. For the reasons found above, Petitioner has met its

burden of proving the reasonableness of the proposed

disciplinary action under the circumstances.

6 6 . Petitioner has established by a preponderance of the

competent, substantial, and more credible evidence that there is

just cause for Respondent's termination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is her eby:

RECOMMENDED that Petitioner, Manatee County School Board,

enter a final order terminating the employment of Respondent,

Joyce Taylor.

DONE AND ENT ERED this 25th day of February , 2011 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of February , 2011 .

ENDNOTES

1/ Debra Horne, a specialist with the OPS who conducted the

investigation of Ms. Taylor, testified that she followed up on

the allegations of threats by Ms. Rhodes in her questioning of

Ms. Rhodes and others. Ms. Horne noted the conflicting

statements given by Ms. Taylor, who was the only one asserting

that there were threats, and by Ms. Rhodes, who denied making

any threats. Ms. Horne did not pursue the matter in a form al

investigation. That judgment is beyond the scope of this

proceeding, but tends to be supported by the limited information

in this record.

2/ Ms. Taylor made a report, in writing, to Mr. Boice in

August 2010, to complain that others had told her th at

Ms. Rhodes was inappropriately talking to custodial staff about

"the situation between [Ms. Rhodes] and Beth Haisley."

Mr. Boice followed up by calling Ms. Rhodes in for a meeting, at

which he admonished her not to engage in such discussions, and

she a ssured him she had not done so. Presumably, had Ms. Taylor

similarly reported more serious concerns about Ms. Rhodes, such

as the alleged physical threats to which Ms. Taylor testified,

there would have been at least the same kind of swift follow - up

as oc curred in the wake of Ms. Taylor's complaint about

inappropriate discussions.

3/ All statutory references are to Florida Statutes (2010),

unless otherwise noted. It is noted that the events giving rise

to this disciplinary action occurred at least, in part, when the

2009 statutes were still in effect, but there were no changes in

2010 to any of the statutory provisions relied on in the charges

against Respondent.

COPIES FURNISHED :

Dr. Eric J. Smith

Commissioner of Education

Department of Education

T urlington 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

Tim McGonegal, Supe rintendent

Manatee County Schools

215 Manatee Avenue, West

Bradenton, Florida 34205 - 9069

Scott A. Martin, Esquire

Manatee County School Board

Post Office Box 9069

Bradenton, Florida 3420 6

Peter Lombardo, Esquire

Law Office of Peter Lombardo

1101 Sixth Avenue West, Suite 204

Bradenton, Florida 34205

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 fi led with the agency that

will issue the Final Order in this case.