10-010094TTS Broward County School Board vs. Sherry Harris Status: Closed Recommended Order on Wednesday, November 23, 2011.

Summary: Respondent is guilty of misconduct in office by virtue of her inappropriate conduct during the administration of the FCAT to her class. Recommend termination of Respondent's employment with the school district.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10 - 10094 TTS

)

SHERRY HARRIS , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to not ice , an administrative hearing was conducted

by video teleconference at sites in Tallahassee and Lauderdale

Lakes, Florida, on September 19 and 20, 2011, before

Administrative Law Judge Edward T. Bauer of the Division of

Administrative Hearings ("DOAH") .

APPEARANCES

For Petitioner: Mark A. Emanuele , Esquire

Panza , Maurer & Maynard, P.A.

Bank of America Building, Third Floor

3600 North Federal Highway

Fo rt Lauderdale, Florida 33308

For Respondent : No Appearance

STATEMENT OF THE ISSUE

Whether just cause exists to terminate Respondent's

employment for misconduct in office and immorality, as alleged

in the Administrative Complaint.

PRELIMINARY STATEMENT

On October 25, 2010, the Broward County Superintendent of

Schools issued an Administrative Complaint recommending that the

Broward County School Board (School Board) t erminate Respondent

from her teaching position based on the following administrative

charges:

6. Respondent, Sherry Harris, enga ged in

inappropriate conduct by disrupting the

administration of Florida's Comprehensive

Assessment Test ("FCAT") at Lauderhill

Middle School on or around March 11, 2010.

Such inappropriate conduct includes, but is

not limited to, failure to start the FCA T on

time or in accordance with procedures,

having a demeaning conversation with a

student during the administration of the

FCAT, making personal telephone calls and

sending inappropriate emails during the

administration of the FCAT, refusing to

follow the instructions of her superiors,

violating other test security or

administration rules, and engaging in other

inappropriate conduct that was disruptive

and detrimental to the students' ability to

take the FCAT in an appropriate testing

environment.

7. Add itionally, Ms. Harris engaged in

inappropriate conduct by emailing and

communicating with other School Board

employees about the FCAT who were out of the

chain of command, and by making false and

disparaging statements about the School

Board and School Boa rd employees in those

communications. Ms. Harris' inappropriate

conduct also included, but is not limited

to, communicating false and disparaging

information about the School Board and

School Board employees to non - School Board

employees, contacting paren ts of students

and communicating false and disparaging

information about the School Board, and by

going to the homes of students and telling

the students' parents that the principal [of

Lauderhill Middle School] was covering up

cheating on the FCAT, and re questing that

the parents go to the school and confront

the principal.

According to the Administrative Complaint, Respondent's

alleged behavior, as described above, amounted to misconduct in

office and immorality, in violation of section 1012.33, Florida

Statutes, and Florida Administrative Code Rules 6B - 1.001, 6B -

1.006, and 6B - 4.009. Respondent timely requested a formal

hearing to contest the allegations, and, on November 10, 2010,

the matter was referred to DOAH for further proceedings.

As noted abo ve, the final hearing in the instant case was

held on September 19 and 20, 2011, during which Petitioner

called the following witnesses: Jeannie Floyd, Cindy Pluim,

Janet Jackson, Shalonda Griggs, Carlos Vignau, Ronald Bryant,

Leslie Pullum, Johanna David son, and Richard Mijon.

Petitioner's Exhibits 1, 8, 14, 15, 16, 17, 29, 30, 53, 60, and

61 were received in evidence. Respondent did not appear for the

final hearing on either date. 1 /

The final hearing tr anscript was filed on October 31 , 2011.

Petition er timely submitted a Proposed Recommended Order, which

the undersigned has considered. Respondent did not file a

proposed recommended order. 2 /

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the t ime of the

alleged misconduct.

FINDINGS OF FACT

A. The Parties

1. T he Broward County School Board, Petitioner in this

case, is the constitutional entity authorized to operate,

control, and supervise the Broward County Public School System.

2. At all times pertinent hereto, Respondent was employed

as a teacher at Lauderhill Middle School ("Lauderhill") , which

is a public school in Broward County.

B. The Events of March 11, 2010

3. On March 11, 201 0 , Respondent was scheduled to

administer the scien ce portion of the Florida Comprehensive

Assessment Test ("FCAT") to a first - period c lass at Lauderhill .

4. The FCAT is a significant test in that students'

performance on the examination influences the letter grades (A

through F) awarded annually to Flor ida's public schools, which

in turn impacts the level of funding school di stricts receive

from the state.

5 . Prior to March 11, 2010 , and during the same school

year, Respondent ÏÏ as well as all other personnel who planned to

administer the FCAT ÏÏ were re quired to read the FCAT Test

Administration Manual ("FCAT manual") and attend in - service

training. Pertinent to the instant case and consistent with the

FCAT manual , Respondent and her colleagues were specifically

instructed during training that electroni c devices, including

cell phones, could not be used during testing.

6 . The tes ting schedule for March 11, 2010 , contemplated

that Respondent and the other teachers administering the FCAT

would report to the office of Shalonda Griggs (one of

Lauderhill's guidance counselors) at approximately 8:25 a.m. to

pick up the testing materials for their respective first period

students. Prior to leaving Ms. Griggs' office, each teacher was

expected to examine the test booklets and ensure that the

materials were in tact ÏÏ i.e., confirm that none of the seals on

the test books were broken. It was further anticipated that

each teacher would begin the FCAT at 8:30 a.m.

7 . On the morning of the examination, Respondent timely

reported to Ms. Griggs' office and signed f or the tes ting

materials . Respondent reported no issues with the test booklets

and proceeded to her classroom.

8 . At approximately 8:30 a.m., guidance counselor Janet

Jackson ÏÏ who was monitoring teachers in the area of the school

where Respondent's clas sroom was located ÏÏ obse rved Respondent,

who had not start ed the F CAT, engaged in a verbal altercation

with a student (C.H.).

9. Ms. Jackson promptly advised Lauderh ill's principal,

Jeannie Floyd, of the situation, at which point Ms. Floyd and

Ms. Griggs responded to the classroo m and instructed Respondent

to cease her inappropriate dialogue with C.H. and to begin the

FCAT immediately. Before she returned to the front office,

Ms. Floyd spoke briefly with C.H. ÏÏ who was visibly upset ÏÏ and

advised her that she could take the FCAT on the following day.

10 . A pproximately 35 minutes later, Assistant P rincipal

Cindy Pluim proceeded to Respondent's classroom to monitor the

testing procedures. Upon her arrival, Ms. Pluim observed

Respondent, who had yet to b e gin administering the test,

conversing on a cell phone in front of the class.

11. Although Ms. Pluim ordered Respondent to end the

telephone call and exit the classroom so that another member of

the faculty could administer the test, Respondent refused and

advised that she was speaking with her lawyer. Responden t

further remarked that the seals of the test bookl ets had been

prematurely broken ÏÏ i.e., that the booklets had been unsealed

prior to Respondent taking possessio n of them in Ms. Griggs'

office . During the final hearing, Ms. Pluim credibly testified

that contrary to Respondent's statement, the test booklets in

question had not been unsealed.

1 2 . Between 9:15 and 9:20 a.m., Ms. Pluim returned to the

front office and informed Ms. Floyd that Re spondent had refused

to comply with her directives. At that point, Ms. Floyd and

Ms. Pluim proceeded to Respondent's classroom and obse rved that

she had yet to end the telephone call. According to Ms. Pluim,

whose testimony the undersigned credits fully , the students

appeared nervous and upset by Respondent's conduct.

13 . In an effort to avoid any unpleasantness in the

students' presence , Ms. Floyd stood in the door way and

repeatedly gestured fo r Respondent to exit the classroom .

Undeterred , Responde nt ignored Ms. Floyd and continued with her

telephone conversation. After she waited fruitlessly for nearly

five minutes in the hope that Respondent would comply, Ms. Floyd

returned to the front office and requested assistance from the

School Board's spec ial investigati ve unit (SIU) .

14 . At 9:44 a.m., Respondent ÏÏ who was still in her

classroom ÏÏ sent an e - mail to : James Notter, the Superintendent

of Schools for Broward County; the Commissioner of Education for

the State of Flori da; Paul Houchens, the Direc tor of Assessment

for the Broward County School District; and Ms. Floyd. The e -

mail reads, in pertinent part:

Mrs. Floyd you forgot to sign the security

checklist the three times you entered my

classroom even though I did ask you to.

* * *

Now I have s tudents complaining that their

tests have been tampered with and had to

listen to complaints.

I don't know what is going on, but testing

is a serious matter and not to be taken

lightly.

I have already reported this information to

others.

Ms. Floyd, a s you are aware my daughter

attends this school and testing effects

[sic] her. What is going on is a travesty

and what is going on now isn't right.

15 . At approximately 10:15 a.m., several SIU officers (and

an officer with the Lauderhill Police Departme nt) arrived at

Lauderhill, re moved Respondent (who still had not started the

FCAT) from her cl assroom, and later escorted her from the

campus.

C. Subsequent Events

16 . On a Saturday morning d uring late March or early April

2010, Respondent appea red unannounced at the residence of Ronald

Bryant, whose daughter attended Lauderhill. During the visit ÏÏ

which irritated Mr. Bryant due to the early hour and lack of

advance notice ÏÏ Respondent stated that Ms. Floyd was attempting

to "cover - up" cheating on the FCAT. Resp ondent further

indicated that she wished for Mr. Bryant to contact the Broward

County School Board and lodge a complaint. Although Mr. Bryant

did not believe that the allegations were any of his business,

he later went to Lauderhill ÏÏ in an effort to determine why

Respondent had come to his home ÏÏ and spoke with Ms. Floyd.

17 . On another occasion following the events of March 11,

2010, Respondent contacted (by telephone) a second parent,

Leslie Pullum. During the phone conversation, Respo ndent

attempted to convince Ms. Pullum that Ms. Floyd was using her

(Ms. Pullum's) daughter as part of a conspiracy to get

Respondent fired. Ms. Pullum, unconvinced and upset by

Respondent's remarks, subsequently complained to Ms. Floyd about

Respondent's behavior.

18. During the final hearing, Petitioner elicited no

evidence concernin g the veracity of Respondent's a llegations

regarding Ms. Floyd.

CONCLUSIONS OF LAW

A. Jurisdiction

19 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 1012.33, 120.569, and 120.57(1), Florida Statutes.

B. The Burden and Standard of Proof

20 . Petitioner seeks to terminate Respondent's employment.

In order to do so, Petitioner must prove by a p reponderance of

the evidence that Respondent committed the violations as alleged

in the Administrative Complaint . McNeill v. Pinellas Cnty. Sch.

Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of

Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990 ).

21 . The preponderance of the evidence standard requires

proof by "the greater weight of the evidence" or evidence that

"more likely than not" tends to prove a certain proposition.

See Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000); see

also Wil liams v. Eau Claire Pub. Sch. , 397 F.3d 441, 446 (6th

Cir. 2005)(holding trial court properly defined the

preponderance of the evidence standard as "such evidence as,

when considered and compared with that opposed to it, has more

convincing force and produ ces . . . [a] belief that what is

sought to be proved is more likely true than not true").

C. Grounds for Termination

22 . Pursuant to s ection 1012.33(6)(a), Florida Statutes,

the School Board is authorized to suspend or dismiss :

A ny member of the in structional staff

. . . at any time during the term of [her

teaching] contract for just cause . . . .

The district school board must notify the

employee in writing whenever charges are

made against the employee and may suspend

such person without pay; but , if the charges

are not sustained, the employee shall be

immediately reinstated, and his or her back

salary shall be paid.

(Emphasis added ) . The term "just cause" :

[I] ncludes, 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 to, regardless of

adjudication of guilt, any crime involving

moral turpitu de.

§ 1012.33(1)(a), Fla. Stat.

23 . In its Administrative Complaint, Petitioner advances

alternative grounds for dismissing Respondent: " misconduct in

office " (Count A ) and " immorality " (Cou nt B ) . Whether

Respondent is guilty of these charges, both of which are

discussed separately below, is a question of ultimate fact to be

decided in the context of each alleged violation. McKinney v.

Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

D . Misconduct in Office

24 . As noted above, Petitioner first contends that

Respondent has committed "misconduct in office," which is

defined by the State Board of Education as a:

[V]iolation of the Code of Ethics of the

Education Profession as adopted i n 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.

Fla. Admin. Code R. 6B - 4.009(3).

25 . "As shown by a careful reading of r ule 6B - 4.009, the

offense of misconduct in office consists of three elements:

(1) A serious violation of a specific rule that (2) causes (3)

an impairment of the employee's effectiveness in the scho ol

system." Miami - Dade Cnty. Sch. Bd. v. Regueira , Case No. 06 -

4752, 2007 Fla. Div. Adm. Hear. LEXIS 208 (Fla. DOAH Apr. 11,

2007) . To elaborate a bit , r ule 6B - 4.009:

[P]lainly requires that a violation of both

the Ethics Code and the Principles of

Profe ssional Education be shown, not merely

a violation of one or the other. The

precepts set forth in the Ethics Code,

however, are so general and so obviously

aspirational as to be of little practical

use in defining normative behavior. It is

one thing to s ay, for example, that teachers

must "strive for professional growth." See

Fla. Admin. Code R. 6B - 1.001(2). It is

quite another to define the behavior which

constitutes such striving in a way that puts

teachers on notice concerning what conduct

is forbidd en. The Principles of

Professional Conduct accomplish the latter

goal, enumerating specific " do s" and

" don't s." Thus, it is concluded that that

while any violation of one of the Principles

would also be a violation of the Code of

Ethics . . . .

Id. ( Underline added ; emphasis in original omitted ).

26 . As underlying infractions on which to base the charge

of misconduct in office, Petitioner contends that Respond ent's

behavior on March 11, 2010 , and her subsequent statements to

Mr. Bryant and Ms. Pullu m resulted in the following violations

of the Principles of Professional Conduct:

6B - 1.006 Principles of Professional Conduct

for the Education Profession in Florida.

* * *

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student's mental

and/or physical health and/or safety.

(b) Shall not unreasonably restrain a

student from independent action in pursuit

of learning.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

* * *

(4) Obligation to the public requires that

the individual:

(a) Shall take reasonable precautions to

distinguish between personal views and those

of any educa tional institution or

organization with which the individual is

affiliated

(b) S hall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

* * *

(5) Obligation to the profession of

ed ucation requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(d ) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual's performance

of professional or work re sponsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

o r discrimination.

(e) Shall not make malicious or

intentionally false statements about a

colleague.

27 . Of the eight rule violations quoted above, Petitioner

has met its burden of proof as to four : r ule 6B - 1.006(3)(a) ,

(3)(e), (4)(b), and (5)(a). 3 /

28 . Beginning with r ule 6B - 1.006(3)(a), Respondent failed

to make reasonable effort to protect her students from

conditions harmful to learn ing and/or their mental health when

she improperly and substantially delayed the administration of

the FCAT ÏÏ which agitated and upset Respondent's class and

culminated in her removal from the classroom by law enforcement

officers ÏÏ and engaged in a verbal altercation with C.H., which

so upset C.H. that Lauder hill's principal authorized her to take

the examination the n ext day. See Horne v. Hayes , Case No. 04 -

477, 2004 Fla. Div. Adm. Hear. LEXIS 1876 (F la. DOAH June 10,

2004) (finding that educator failed to protect student from

conditions harmful to learning and mental by engaging in a

verbal altercation with the studen t at a school basketball

game ).

29 . Respondent's verbal altercation with C.H. a lso

constitutes a violation of r ule 6B - 1.006(3)( e), which prohibits

an educator from intentionally subjecting a student to

unnecessary embarrassment or disparagement. See i d.

30 . Finally, by falsely informing the assistant principal

that the integrity of the testing booklets had been compromised,

Respondent violated r ule 6B - 1.006(4)(b) , which provides that an

educator shall not intentionally misrepresent facts concerning

an educational matter in public expression, as well as r ule 6B -

1.006(5)(a), which requires an educator to maintain honesty in

all professional dealings. See Gallagher v. Desjarlais , Case

No. 00 - 2767, 2000 Fla. Div. Adm. Hear. LEXIS 5435 (Fla. DOAH

Oct. 3 1, 2000)(finding that teacher failed to maintain honesty

in professional dealings by lying to his administrator about the

cause of a vehicle f ire in the school parking lot); see also

Smith v. Brown , Case No. 10 - 10515, 2011 Fla. Div. Adm. Hear.

LEXIS 134 (F la. DOAH May 31, 2011).

31 . Next, it must be determined whether Respondent's

violations of the foregoing Principles of Professional Conduct

impaired her effectiveness in the school system. Although

Petitione r adduced no specific evidence of impair ment, it is

well - settled that:

" [ M ] isconduct in office" may be established,

even in the absence of "specific" or

"independent" evidence of impairment, where

the conduct engaged in by the teacher is of

such a nature that it "speaks for itself" in

terms of its seriousness and its adverse

impact on the teacher's effectiveness. In

such cases, proof that the teacher engaged

in the conduct is also proof of impaired

effectiveness.

Miami - Dade Cnty. Sch. Bd. v. Grey , Case No. 10 - 9324, 2011 Fla.

Div. Adm. Hear. LE XIS 18, *33 (Fla. DOAH Mar. 8, 2011 ); Purvis

v. Marion Cty. Sch. Bd. , 766 So. 2d 492, 498 (Fla. 5th DCA

2000)(holding impaired effectiveness could be inferred by nature

of misconduct, which included resisting arrest and testifying

falsely under oath during a criminal trial; "[t]his is a level

of misconduct which would support the inference that Purvis'

effectiveness as a teacher has been impaired, even though no

parent, student or co - worker was called as a witness to say

so"); Walker v. Highlands Cty. Sch. Bd. , 752 So. 2d 127, 128

(Fla. 2d DCA 2000)(holding that teacher's misconduct, which

resulted in "loss of control" in classroom, permitted an

inference of ineffectiveness); Brevard Cnty. Sch. Bd. v. Jones ,

Case No. 06 - 1033, 2006 Fla. Div. Adm. Hear. LEXIS 287 , *17 (Fla.

DOAH J une 30, 2006) ("[T]he need to demonstrate 'impaired

effectiveness' is not necessary in instances where the

misconduct by a teacher speaks for itself, or it can be inferr ed

from the conduct in question"); Miami - Dade Cnty. Sch. Bd. v.

Lef kowitz , No. 03 - 0186, 2003 Fla. Div. Adm. Hear. LEXIS 675 ,

*23 - 24 (Fla. DOAH J uly 31, 2003) ("The School Board failed to

prove by a preponderance of the direct evidence that

Mr. Lefkowitz's actions were so serious that they impaired his

effectivenes s as a teacher. Nonetheless, based on the findings

of fact herein, it may be inferred that Mr. Lefkowitz's conduct

impaired his effectiveness as a teacher in the Miami - D ade County

public school system ")(citation omitted).

32 . It is concluded that Respo ndent's bizarre conduct ÏÏ

eng aging in a verbal altercation wi th a student, inexplicably

delaying the FCAT for over ninety minutes until her removal from

the classroom , and lying to the assistant principal concerning

the integrity of the testing booklets ÏÏ wa s of such severity that

an impairment of her effectiveness in the sch ool district should

be inferred. See Gallagher v. Desjarlais , Case No. 00 - 2767,

2000 Fla. Div. Adm. Hear. LEXIS 5435 (Fla. DOAH Oct. 31, 2000)

("Petitioner proved by clear and convincing evidence that

Respondent is guilty of personal conduct that seriously reduces

his effectiveness as a school board employeeust is an

important component of the relationship that must exist among

teachers and betwee n administrators and a teacher. Resp ondent's

dishonesty seriously undermines this trust ") ; see also Miami -

Dade Cnty. Sch. Bd. v. Spivey , Case No. 06 - 1073, 2007 Fla. Div.

Adm. Hear. LEXIS 126 (Fla. DOAH Feb. 28, 2007)(inferring

impaired effectiveness where educator engaged in "deceitful or

di shonest conduct" in connection with his professional duties);

Broward Cnty. Sch. Bd. v. Sapp , Case No. 01 - 3803, 2002 Fla. Div.

Adm. Hear. LEXIS 1574 (Fla. DOAH Sept. 24, 2002)("[A]s a teacher

and coach, Sapp was required to be a role model for his

students . To be effective in this position of trust and

confidence, he needed to maintain a high degree of

trustworthiness, honesty, judgment, and discretion").

Accordingly, Respondent is guilty of misconduct in office, as

charged in Count A of the Administrativ e Complaint, and just

cause therefore exists to terminate her employment.

E. Immorality

33 . Petitioner further alleges , in Count B, that just

cause also exists to terminate Respondent's employment based

upon her commission of an act o f "immorality," which is defined

as:

[C]onduct that is inconsistent with the

standards of public conscience and good

morals . It is conduct sufficiently notorious

to bring the individual concerned or the

education profession into public disgrace or

disrespe ct and impair the individual's

service in the community.

Fla. Admin. Code R. 6B - 4.009(2) (emphasis added).

34 . Pursuant to the foregoing definition, Petitioner must

demonstrate ÏÏ in order to dismiss Respondent for immoral

conduct ÏÏ that she engaged in be havior "inconsistent with the

standards of public conscience and good morals, and b) that the

conduct was sufficiently notorious so as to [1] disgrace the

teaching profession and [2] impair [Respondent's] service in the

community." McNeill v. Pinellas Cnt y. Sch. Bd. , 678 So. 2d 476,

477 (Fla. 2d DCA 1996)(italics in original).

35 . In the instant case, Petitioner presented no evidence

establishing the applicable "standards of public conscience and

good morals." Fla. Admin. Code R. 6B - 4.009(2); McNeill , 678 So.

2d at 477. As a result, the undersigned cannot determine

whether Respondent violated such public standards , and must

therefore conclude that Petitioner has failed to meet its burden

of proof with respect to this charge . See Miami - Dade Cnty. Sch.

Bd. v. Eskridge , Case No. 10 - 9326 , 2011 Fla. Div. Adm. Hear.

LEXIS 62, *28 - 29 (Fla. DOAH Apr. 6, 2011)(finding school

security monitor not guilty of immorality where school board

presented no evidence establishing the applicable standards of

public conscie nce and good morals); Broward Cnty. Sch. Bd. v.

Deering , Case No. 05 - 2842, 2006 Fl a. Div. Adm. Hear. LEXIS 367,

*12 (Fla. DOAH July 31, 2006)(finding educator not guilty of

immorality where school board "did not offer any persuasive

evidence establishing t he applicable 'standards of public

conscience and good morals'").

36 . Although the evidence did not establish that

Respondent committed an act of immorality, just cause

nevertheless exists to terminat e her employment based upon the

conclusion that Respon dent is guilty of misconduct in office.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a final

order : (1) finding Respondent guilty of misconduct in office;

(2) finding Respo ndent not guilty of immorality; and (3)

terminating Respondent's employment as a teacher with the School

Board.

DONE AND ENTERED this 23rd day of November , 2011 , in

Tallahassee, Leon County, Florida.

S

_____________ ______________________

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1 230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Fi led with the Clerk of the

Division of Administrative Hearings

this 23rd day of November, 2011.

ENDNOTES

1 / Petitioner and Respondent were provided written n otice on

April 12, 2011, that the final hearing would be held on

September 19, 20, and 21, 2011, at 9:00 a.m. On the first day

of the proceedings, the undersigned delayed the start of the

final hearing for approximately 35 minutes in an unsuccessful

effor t to contact Respondent. Subsequently, at 1:20 p.m. (after

Petitioner had presented most of its case), Respondent left a

voicemail ÏÏ the only message received at any time from Respondent

regarding her absence ÏÏ with the undersigned's assistant, in

which Res pondent claimed that she was "stranded" in Miami and

requested an immediate return call. Multiple, timely attempts

(two of which were on record) were thereafter made to contact

Respondent on her cellular phone, without success.

Although Petitioner completed the presentation of its case

during the afternoon of September 19, the undersigned decided,

in an abundance of caution, to reconvene at 9:00 a.m. on

September 20. Respondent again failed to appear, and the

undersigned closed the hearing at 9:20 a.m. To date, Respondent

has provided no explanation (other than the brief voicemail

message on September 19, which was received over four hours

after the start of the proceedings) for her non - appearance at

the final hearing.

2 / Following the fina l hearing, an Order of Post - Hearing

Instructions was entered that: (1) directed Petitioner to

provide Respondent with copies of all exhibits that were

introduced into evidence; (2) advised Petitioner and Respondent

that proposed recommended orders were du e no later than 20 days

after the transcript of the final hearing was filed with DOAH;

(3) cautioned the parties to monitor the transcript filing date

by accessing DOAH's website or contacting the clerk's office;

and (4) provided Respondent with the court reporter's contact

information.

3 / While Respondent's statements concerning Ms. Floyd ÏÏ i.e.,

that Ms. Floyd was covering up cheating on the FCAT and engaging

in a "conspiracy" to fire Respondent ÏÏ are no doubt incredible on

their face, the undersigne d cannot conclude that Respondent

violated rule 6B - 1.006(5)(e) where no evidence was elicited

regarding the veracity of the allegations. This could easily

have been accomplished during Ms. Floyd's direct examination by

asking her to deny the allegations. Petitioner also failed to

meet its burden with respect to rules 6B - 1.006(3)(b), 6B -

1.006(4)(a), and 6B - 1.006(5)(d).

COPIES FURNISHED :

Mark A. Emanuele , Esquire

Panza, Maurer & Maynard, P.A.

Bank of America Building, Third Floor

3600 North Federal Highway

Fort Lauderdale, Florida 33308

Sherry Harris

2322 Pershing Street, No. 4

Hollywood, Florida 33020

Robert Runc i e , Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301 - 2600

Charles M. Beal, Genera l Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Gerard Robinson

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.