11-003199TTS Lee County School Board vs. Patricia Slade Status: Closed Recommended Order on Tuesday, November 15, 2011.

Summary: School Board established "just cause" for teacher termination where facts showed teacher slept during her pre-k students' naptime.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 11 - 3199TTS

)

PATRICIA SLADE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to not ice, a final hearing was held in this case

on September 1, 2011, by video teleconference in Tallahassee and

Fort Myers, Florida, before Thomas P. Crapps, a designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esq uire

Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Jeffrey Sirmons, Esq uire

Johnson and Sirmons, LLP

510 Vonderburg Dr ive , Suite 309

Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether Petitioner, Lee County School Board (School Board),

has established "just cause" to terminate the Respondent,

Patricia Slade (Ms. Slade), as a teacher.

PRELIMINARY STATEMENT

On May 13, 2011, Dr. Lawrence D. Tihen, s uperintendent of

Lee County School District, filed a Petition for Termination

against Ms. Slade. The Petition for Termination alleged that

Ms. Slade, a teacher, had fa llen asleep in her classroom during

the school day and that during the 2010 - 2011 school year,

Ms. Slade had left her students unattended. The Petition for

Termination charged Ms. Slade with Ð misconduct in office , Ñ

pursuant to section 1012.33(1)(a), Flori da Statutes (2010), 1/ and

Florida Administrative Code Rule 6B - 4.009(3) ; that her actions

constituted "inefficiency, the repeated failure to perform

duties prescribed by law , " violating

section 1012.33(1)(a), and r ule 6B - 4.009(1)(a)(1). Finally,

Ms. Slad e was charged with violating Lee County School Board

Policies 5.02, Ethical Standards and 5.29, Complaints Relating

to Employees.

Ms. Slade requested an administrative hearing on the

Petition for Termination of Employment.

On June 21, 2011, the School Bo ard considered the Petition

for Termination and suspended Ms. Slade without pay pending

receipt of a Recommended Order in the administrative hearing.

That same date, the School Board forwarded the Petition for

Termination to DOAH. Administrative Law Judg e Thomas P. Crapps

was assigned the case, and a final hearing was scheduled for

September 1, 2011.

At the September 1, 2011 , hearing, the School Board

presented the testimony of five witnesses: Alex Dworzanski

(Mr. Dworzanski), a ssistant p rincipal of L ehigh Acres Elementary

School; Amelia Sanchez (Ms. Sanchez), a school volunteer;

Bernadette Hicks (Ms. Hicks), a former teacher; Jessica Serrano

(Ms. Serrano) and Donna Kinney (Ms. Kinney), two teacher aides.

The School Board introduced into evidence E xhi bits 1 through 7,

and 9 through 12.

Ms. Slade presented the testimony of Ranice Monroe

(Ms. Monroe), d irector of p rofessional s tandards and e quity for

the Lee County School District, and herself. Ms. Slade

introduced into evidence E xhibits 1, 5 , and 6.

A T ranscript of the proceedings was filed with DOAH. The

parties requested additional time to prepare recommended orders,

which was granted. The parties filed their P roposed R ecommended

O rders on October 17, 2011, which the undersigned considered in

pre paring the Recommended Order.

FINDINGS OF FACT

1. Ms. Slade is a teacher at Lehigh Acres Elementary

School and has worked for the Lee County School District since

August 19, 1997. As a teacher, Ms. Slade is an instructional

employee and her employmen t is governed, in part, by the

collective bargaining agreement between the School Board and the

Teachers Association of Lee County (TALC) .

2. The School Board is charged with the operation of the

free public education in Lee County, Florida, and has the

a uthority to terminate or suspend instructional employees. See

§ 1012.22(1)(f).

3. The record shows by preponderance of the evidence that

Ms. Slade has fallen asleep in her classroom during the school

day on several instances and on one occasion left her classroom

unattended.

4. The record shows that for school year 2010 - 2011,

Ms. Slade was a teacher for pre - kindergarten children , who are

four - years - old. The School Board witnesses credibly testified

that they had observed Ms. Slade asleep in the class room on

different dates. Ms. Sanchez, a grandmother of one of the

students in Ms. Slade's classroom and school volunteer, credibly

testified that she had observed Ms. Slade asleep three or four

times during the school year. In one instance, Ms. Sanchez

o bserved Ms. Slade asleep during the children's naptime for a

period of approximately 30 minutes.

5. Ms. Sanchez's testimony was corroborated by the

credible testimony of Ms. Hicks, a former teacher and two

teacher aides, Ms. Serrano and Ms. Kinney. Ms. Hicks credibly

testified that she observed Ms. Slade on three occasions.

Ms. Hicks described one of the occasions when she walked into

Ms. Slade's classroom during the afternoon and found her asleep

on the floor . Similarly, Ms. Serrano credibly testifi ed that

sometime in January 2011 , during the students' naptime,

Ms. Kinney had come to her classroom and asked Ms. Serrano to

watch Ms. Slade's class while Ms. Kinney left to use the

restroom. Upon entering Ms. Slade's classroom, Ms. Serrano

found Ms. Sl ade asleep on the floor. Ms. Serrano credibly

testified that she woke Ms. Slade up , because Ms. Serrano had to

go back to her own classroom. Finally, Ms. Kinney, who was

Ms. Slade's teacher aide, credibly testified that Ms. Slade had

fallen asleep once before the winter break and more frequently

after the winter break. In a written statement provided by

Ms. Kinney to the school, Ms. Kinney indicated by February 2011,

Ms. Slade was falling asleep in the classroom "once a week to

every other week." Duri ng one of Ms. Slade's midday naps after

the winter break, Ms. Kinney took a picture with a cell phone of

Ms. Slade sleeping on the floor. The photograph, which was

admitted into evidence, clearly shows Ms. Slade asleep on the

floor of the classroom with t he students asleep on their mats

around her.

6. The record also shows that on February 15, 2011,

Ms. Slade fell asleep in the classroom. Mr. Dworzanski,

a ssistant p rincipal for the school, credibly testified that he

went to Ms. Slade's classroom after being called by Ms. Kinney ,

because Ms. Slade was asleep. Mr. Dworzanski credibly testified

that he found Ms. Slade "sitting underneath where the smart

board was propped up against the wall and she was asleep."

Mr. Dworzanski further testified that Ms. Slade was difficult to

wake and that she was incoherent when she was finally a roused.

Based on her incoherence, Ms. Slad e was taken to the school

nurse and paramedics were called. After this February 15, 2011 ,

incident, Ms. Slade did not return to the c lass.

7. Ms. Slade offered that she had "passed out" on the

February 15, 2011, incident as the result of acute bronchitis.

While Ms. Slade testified that she had acute bronchitis, her

testimony was not credible for showing that her diagnosis of

acute br onchitis was the cause for her being asleep or in an

unconscious state on February 15, 2011. Therefore, the

undersigned finds that there was no competent evidence to

explain why Ms. Slade slept during the school day.

8. Mr. Dworzanski credibly explained that a teacher is not

permitted to sleep during the pre - kindergarten student's

naptime , because the teacher must monitor the students and keep

them safe. Apparently, not all four - year - old students sleep

during naptime and the teacher needs to keep an eye on the

students .

9. Next, the record supports the finding that on one

instance Ms. Slade left her class unattended. Ms. Kinney

credibly testified that on one occasion Ms. Kinney went to the

cafeteria to retrieve the school lunches. Upon returning to th e

classroom, Ms. Kinney did not see Ms. Slade in the classroom.

Further, there was no adult supervision in the classroom when

Ms. Kinney entered the class with the lunches. When asked by

Ms. Kinney, the students informed her that Ms. Slade had gone to

th e bathroom. Ms. Slade returned "several minutes" after

Ms. Kinney had returned to the classroom.

10. Ms. Slade does not have any prior disciplinary record

with the school, and was an effective teacher when she ha d been

observed teaching.

CONCLUSIONS O F LAW

11. DOAH has contractual jurisdiction over the parties to

and subject matter of the Petition to Terminate. §§ 120.65(7) ,

120.569, and 120.57, Fla . Stat . (2011).

12. The School Board has the authority to terminate and/or

suspend instructional perso nnel without pay and benefits.

§§ 1012.22(1)(f) and 1012.40(2)(c). The School Board has the

burden of proving by a preponderance of the evidence the

allegations underlying the proposed disciplinary action set

forth in the Petition for Termination. See McNeill v. Pinellas

Cnty . Sch . Bd . , 678 So. 2d 476 (Fla. 2d DCA 1996).

13. Ms. Slade is an instructional employee of the School

District; thus , she is subject to the collective bargaining

agreement and section 1012.33. The standard for discipline of

in structional personnel is "just cause" pursuant to section

6.024 of the TALC Collective Bargaining Agreement and section

1012.33(1)(a). Although the collective bargaining agreement

does not define "just cause," the term is defined by section

1012.33. Sect ion 1012.33 states that "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 con victed or found guilty of, or entering a plea

of guilty to, regardless of adjudication of guilt, any crime

involving moral turpitude."

14. The Petition for Termination charges Ms. Slade with

Ð misconduct in office ,Ñ pursuant to section 1012.33(1)(a), as

defined by rule 6B - 4.009(3) ; inefficiency, the repeated failure

to perform duties prescribed by law pursuant to section

1012.33(1)(a) , as defined by r ule 6B - 4.009(1)(a)(1) ; and

violating Lee County School Board Policies 5.02, requiring

employees to adhere to the highest ethical conduct, and 5.29,

requiring employees to exemplify conduct that is lawful and

professional and contributing to a positive learning environment

for students.

15. Rule 6B - 4.009 sets out the criteria for suspension and

dismissal for school instructional personnel. Rule 6B - 4.009(3)

provides the definition for "misconduct in office" as follows:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in r ule 6B -

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

Professional Conduct for the Education

Profession in Florida as adopted in r ule 6B -

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

impair the individual's effectiveness in the

school system.

16. Florida Administrative Code Rule 6B - 1.001(3) pro vides

that "[a]ware of the importance of maintaining the respect and

confidence of oneÓs colleagues, of students, of parents, and of

other members of the community, the educator strives to achieve

and sustain the highes t degree of ethical conduct." Simila rly,

r ule 6B - 1.006(3)(a) , entitled "Principles of Professional

Conduct for the Education Profession in Florida," requires a

teacher to "make reasonable effort to protect the student from

conditions harmful to learning and/or to the student's mental

and/ or physical health and/or safety." In addition to proving

the rule violation, the School Board must demonstrate that the

Ð misconduct Ñ caused impairment of Ms. Slade's effectiveness in

the school system. See MacMillian v. Nassau Cnty . Sch. Bd ., 629

So. 2d 22 6, 229 - 230 (Fla. 1st DCA 1993)(holding that school

seeking to dismiss a teacher on the basis of Ð misconduct in

office Ñ must establish each and every element of the charge).

17. "Misconduct 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. See Purvis v. Marion Cnty . Sch . Bd . ,

766 So. 2d 492, 498 (Fla. 5th DCA 2000); Walker v. Highlands

Cnty . Sch . Bd . , 752 So. 2d 127, 128 - 29 (Fla. 2d DCA 2000);

Summers v. Sch . Bd . of Marion Cnty . , 666 So. 2d 175, 175 - 76

(Fla. 5th DCA 1995); Brevard County School Board v. Jones ,

Case No. 06 - 1033, 2006 Fla. Div. Adm. Hear. 002.LEXIS 287 *17

(Fla. DOAH June 30, 2006)(Recommended Order)("[T]he need to

demonstrate 'impaired effectiveness' is not nece ssary in

instances where the misconduct by a teacher speaks for itself,

or it can be inferred from the conduct in question."); and

Miami - Dade County School Board v. Lefkowitz, Case No. 03 - 0186,

2003 Fla. Div. Adm. Hear. LEXIS 675 *23 - 24 (Fla. DOAH July 31,

2003)(Recommended Order)("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 effectiveness 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 - Dade County public

school system.")(citation omitted).

18. In addition to the "misconduct in office" charge, the

Petition for Termination charges Ms. Slade wi th "inefficiency,

the repeated failure to perform duties prescribed by law

pursuant to section 1012.33(1)(a), as defined by rule

6B - 4.009(1)(a)(1), which constitutes Ò jus t causeÓ for her

termination." Rule 6B - 4.009(1)(a)(1) , defines incompetence as

the " inability or lack of fitness to discharge the required duty

as a result of inefficiency or incapacity. Since incompetency

is a relative term, an authoritative decision in an individual

case may be made on the basis of testimony by members of a panel

of ex pert witnesses appropriately appointed from the teaching

profession by the Commissioner of Education. Such judgment

shall be based on a preponderance of evidence showing the

existence of one (1) or more of the following: a) Inefficiency:

(1) repeated fai lure to perform duties prescribed by law

(Section 231.09, Florida Statutes); . . . " . 2/

19. The School Board's Policies 5.02 , and 5.29 , provide s

that teachers are held to high ethical standards and are

expected to exemplify conduct that contributes to a p ositive

learning environment.

20. Applying the facts to the law here, the undersigned

concludes that the School Board has shown by the preponderance

of the evidence Ð just cause Ñ to terminate Ms. Slade's

employment.

21. As for the charge of "misconduct in the office , " the

record shows that on several different occasions Ms. Slade fell

asleep for extended periods of time during the school day when

she was in the classroom with pre - kindergarten students.

Further, the evidence established one incident when M s. Slade

left her classroom unattended while she went to the restroom.

Ms. Slade's conduct of sleeping during the children's naptime

and leaving the classroom unattended violated r ule 6B - 1.006(3) ,

by creating conditions harmful to the students' physical h ealth

and safety. Although these incidents occurred during the

student's naptime, Ms. Slade's midday siestas were not

permitted. As the record showed through Mr. Dworzanski's

testimony, during this time the teachers were expected to be

"monitoring the st udents, making sure the students are safe,

because not all the time do students always sleep during that

time." Although Mr. Dworzanski testified that "at times"

Ms. Slade "was very effective" when teaching, it is common sense

that a teacher cannot be ef fective when she is asleep in the

classroom or absences herself from the classroom without leaving

adult supervision. Therefore, the record supports the

conclusion that Ms. Slade was not effective as a teacher.

22. Next, the record establishes that Ms. S lade violated

r ule 1.006(1)(a)(1) , by being incompetent based on the

"inability or lack of fitness to discharge the required duty as

a result of inefficiency or incapacity." Although the School

Board did not bring forward any expert witness showing how

M s. Slade's conduct violated the now repealed section 231.09,

the record did establish that Ms. Slade "failed to perform

duties prescribed by rule of the district school board" in that

she violated the School Board Policies 5.02 , and 5.29. School

Board Pol icies 5.02 , and 5.29 require teachers to exemplify

conduct that contributes to the learning environment. Sleeping

during work hours does not contribute to the learning

environment. Based on this repeated behavior, the undersigned

finds that the School Bo ard established that Ms. Slade was

ineffective.

23. One area that concerned the undersigned was the

repeated theme gathered from the school personnel as to why they

did not report Ms. Slade's sleeping in the classroom earlier.

The testimony showed that p rior to the February 15, 2011 ,

incident Ms. Hicks, Ms. Serrano , and Ms. Kinney had all observed

Ms. Slade asleep in the classroom. Further, the testimony

showed that no one wanted to cause a disturbance or problem, yet

all recognized that Ms. Slade's beha vior endangered the

students. Under the Principles of Professional Conduct for

Educational Profession in Florida, these teaching professionals

had an affirmative duty to report Ms. Slade's sleeping in the

class to the school administrators.

RECOMMENDATIO N

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Lee County School Board enter a

final order terminating the employment of Patricia Slade , as a

teacher.

DONE AND ENT ERED this 1 5 th day of November , 2011 , in

Tall ahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

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 1 5 th day of November , 2011 .

ENDNOTES

1/ Unless otherwise indicated, all references to the

Florida Statutes are to the 2010 version.

2/ Prior to the repeal of c hapter 231, Fl orida Statutes, by

section 1058, chapter 2002 - 387, Laws of Florida, s ection 231.09,

Florida Statutes (2001) , set forth the duties of instructional

personnel as follows:

(1) The primary duty of instructional

personnel is to work diligently and

faithfully to help students meet or exceed

annual learning goals, to meet state and

local achievement requirements, and to

master the skills required to graduate from

high school prepared for postsecondary

education and work. This duty applies to

instructional pers onnel whether they teach

or function in a support role.

(2) Members of the instructional staff of

the public schools shall perform duties

prescribed by rules of the district school

board. The rules shall include, but are not

limited to, rules relating to a teacher's

duty to help students master challenging

standards and meet all state and local

requirements for achievement; teaching

efficiently and faithfully, using prescribed

materials and methods, including technology -

based instruction; recordkeeping; and

fulfilling the terms of any contract, unless

released from the contract by the district

school board.

COPIES FURNISHED :

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

Jeffrey Scott Sirm ons, Esquire

Johnson and Sirmons, LLP

510 Vonderburg Drive, Suite 309

Brandon, Florida 33511

Dr. Joseph Burke, Superintendent

Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

Lois Tepper, Interim General Counsel

Departmen t of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Gerard Robinson, Commission er of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0 400

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.