12-002333TTS Desoto County School Board vs. John B. Sculley Status: Closed Recommended Order on Monday, January 7, 2013.

Summary: Just cause exhists for termination of school psychologist' employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DESOTO COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2333TTS

)

JOHN B. SCULLEY , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on October 29, 2012 , in Arcadia , Florida, before R. Bruce

McKibben of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Shaina Thorpe, Esquire

Allen, Norton , and Blue, P.A.

324 Hyde Park Avenue, Suite 225

Tampa, Florida 33606

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Hwy 19 , North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists to

terminate the employment of Respondent , John B. Sculley

(ÐSculleyÑ). Pe titioner , DeSoto County School Board (the

ÐBoardÑ), alleges that Sculley violated Florida Administrative

Code Rule 6 A - 5 .056(2), i.e., that he was incompetent in the

performance of his duties as a school psychologist.

PRELIMINARY STATEMENT

On June 26, 2012, the Board voted unanimously to terminate

SculleyÓs employment, finding that just cause existed based upon

facts it had reviewed. Respondent timely filed a request for a

formal administrative hearing before the Division of

Administrative Hearings (DOAH) to contest the BoardÓs decision .

At the final hearing held in this matter , the Board called

the following witnesses: Anthony Bobo, psychologi st; Ad r ian

Cline, superintendent of DeSoto County schools; Debra Giacolone,

director of Exceptional Student Education (ÐESEÑ); Kathy Haugan,

psychologist; Robert Hrstka, director of facilities; and Raymond

Klejmont, assistant director of human resources. The Board 's

Exhibits 1 through 14 were accepted into evidence. Respondent

called one witness : Dr. Roosevelt Johnson, retired former

director of ESE. Respondent offered Exhibits 1 through 4 into

ev idence, each of which was accepted. (All hearsay evidence was

admitted subject to corroboration by competent, non - hearsay

evidence. To the extent such hearsay was not corroborated or

was not used to supplement competent evidence , it will not be

used as a basis for any finding herein.)

The parties advised the undersigned that a transcript of

the final hearing would be ordered. The parties requested and

were g ranted thirty days from the date the transcript was filed

at DOAH to submit proposed recommended orders (PROs) . The

Transcript was filed at DOAH on Novem ber 28, 2012 . The PROs

were due on or before December 28, 2012; PetitionerÓs PRO was

filed on December 20, and RespondentÓs PRO was filed

December 27. B oth parties' PROs were given due consideration in

the preparation of this Recommended Order.

FINDING S OF FACT

Based upon the oral testimony and documentary evidence

presented at final hearing, the following findings of fact are

made:

1. The Board is responsible for hiring, firing, and

overseeing all employees within the DeSoto County school system .

At all times relevant hereto, Sculley was employed by the Board

as a school psychologist .

2. Sculley has apparently served for 30 years as a

licensed psychologist. He worked as a school psychologist for

about ten years in DeSoto County. (Sculley did not te stify or

appear at the final hearing. Information concerning his

experience and background can only be derivatively ascertained

through the testimony and evidence presented by other

witnesses.) By all accounts, Sculley did excellent work for the

Board fo r the majority of his tenure.

3. Much of SculleyÓs job duties centered on students in

the ESE program within the school district. Sculley performed

psychological evaluations for students which were then used by

the ESE department to assign the students t o appropriate

programs and classes, apply for state - funded services, and

promote sufficient educational opportunities for the students.

4. In December 2011 , the ESE director for DeSoto County

schools suffered a stroke and was forced to retire. At about

t he same time, the assistant ESE director also chose to retire.

Robert Hrstka was selected to act as the interim ESE director

pending the hiring of a new ESE director. Hrstka had some

experience with ESE students and was familiar with ESE programs.

Hrstka became the interim director on December 8, 2011. Terry

Cassels became his interim assistant ESE director.

5. When Hrstka took over his duties as interim director,

he soon learned that his assistant, Cassels, harbored some

concerns about SculleyÓs work p erformance. According to reports

Cassels made to Hrstka, Sculley was providing incorrect reports

to ESE, he was not administering required tests to students, and

his scoring of tests was deficient. Cassels did not testify at

final hearing, so her stated concerns were not corroborated by

competent, non - hearsay evidence. However, as a result of

CasselÓs stated concerns, Hrstka began to pay attention to

SculleyÓs work product. Hrstka also received additional

information from Cissy Quave about the poor qual ity of SculleyÓs

work. To address the concerns that had been raised by others,

Hrstka talked with the superintendent of schools about bringing

in a trained psychologist to audit the work of Sculley and Quave

Î the only two members of the schoolÓs psycholo gical team.

Quave worked half - time as a school psychologist and the other

half - time as a staffing specialist or staffing coordinator.

6. Before the audit of Sculley and QuaveÓs work began,

Hrstka met with Sculley and discussed some of his concerns and

so me of the concerns that had been raised by Cassels. Following

a meeting with Sculley on or about December 13, 2011 Î just a

week after assuming his duties as interim ESE director Î Hrstka

issued a letter of reprimand to Sculley. The bases for the

reprima nd were that Sculley:

Had asked teachers what tests he should

give students;

Was not giving students the proper

tests;

Had submitted reports that were

incomplete; and

Had inquired of teachers as to the

meaning of a test ceiling.

7. These fundamental s hortcomings by Sculley caused Hrstka

to be concerned about whether Sculley could properly and

competently perform his required duties without further

assistance. Initially, Hrstka was not looking to terminate

SculleyÓs employment; rather, he was concerned with making sure

the psychological assessments and other important tasks were

being completed correctly. Hrstka intended to wait for the

results of the independent, outside expertÓs evaluations before

taking any further action concerning SculleyÓs employ ment

status.

8. To help alleviate the perceived problems with SculleyÓs

work, Hrstka first initiated a plan (set forth in the letter of

reprimand) that would essentially require Sculley to have his

work reviewed by SculleyÓs subordinate, Quave. Quave w as a

certified school psychologist, but she only worked half - time in

that position for the Board and Sculley had supervised Quave

during her internship. Sculley initially approved of the

monitoring plan and it was put into place for a short time. As

will be discussed below, Sculley ultimately filed a

discrimination complaint against the Board, primarily based upon

alleged comments made by Quave during the time she was

ÐoverseeingÑ SculleyÓs work.

9. Meanwhile, on January 21, 2012, Debra Giacolone was

hir ed as the permanent ESE director, relieving Hrstka of his

interim duties. Giacolone was an experienced administrator,

having served as assistant principal and dean of students at

local schools. She had not previously served as an ESE

director, but was qu alified to do so. When Giacolone took over

as ESE director, the decision to audit SculleyÓs work had

already been made. Giacolone was made aware of HrstkaÓs

concerns about Sculley, so she investigated the situation

independently.

10. Giacolone reviewe d psychological reports that had been

signed and certified by Sculley, finding a number of errors,

including: Sculley had not timely completed psychological

evaluations of several students. Sculley had been assigned the

task of developing a plan for condu cting functional behavior

assessments; he did not complete the plan timely. SculleyÓs

comprehensive assessments of students were fairly short and

often did not include background information or the reason for

the studentÓs referral. It was reported to Gi acolone that

Sculley failed to include all pertinent information provided by

parents in his assessments, but even though Giacolone verified

that certain information was not included in the assessment, as

no competent testimony was presented at final hearin g to prove

that the information had been provided by the parents.

11. Thereafter, the aforementioned audit was performed.

The person hired to conduct the audit of Sculley and QuaveÓs

work was Kathy Haugan, a licensed school psychologist who was

working for the Manatee County school system at that time.

Haugan had previously met Sculley and Quave at meetings or

conventions for professional associations, but she did not know

them well. Hrstka, pursuant to HauganÓs directions, pulled a

number of randomly s elected files from Sculley and QuaveÓs

pending case files. Haugan reviewed the selected files using a

File Review Checklist which outlined the various protocols

utilized in performing student psychological assessments.

Reviews of the test protocols are a good means of measuring

whether the person performing the assessments is performing in

accordance with professional standards. The audit of SculleyÓs

files was completed in accordance with generally accepted

standards for such a review.

12. The review o f each file addressed the following

criteria:

Whether items were scored correctly on

subtests;

Whether scores were added correctly;

Whether the scores were transferred

correctly to the front page of the

record form;

Whether the scores were transferred to

scaled scores;

Whether the scaled scores were added

correctly;

Whether composite, percentile, and

confidence interval items were recorded

accurately;

Whether scores and information was

interpreted accurately;

Whether the recommendation was in sync

with the interpretation;

Whether, based on previous data, the

evaluation was valid; and

Whether the report considered data

required by state and federal

guidelines.

13. Haugan determined from her review of the test

protocols that Sculley had only a 27 percent accuracy rate in

his testing results, compared to a 94 percent accuracy rate for

Quave. While many of the errors made by Sculley were

mathematical, i.e., he simply added up scores on his scoring

sheets incorrectly, Haugan found other errors to be more

substantive in nature. The errors made SculleyÓs work Ðat best

suspect and at worst invalidÑ according to Haugan. The work

product was bad enough that Haugan recommended that students who

had been evaluated by Sculley should be reevaluated to deter mine

if they were properly placed and/or receiving appropriate

services. HauganÓs substantive testimony was credible and did

not seem biased or unfair towards Sculley.

14. HauganÓs report recommended that Sculley should pay

much closer attention to the pr otocols used in the evaluation

process. It is important that school psychologist in general Î

and Sculley in particular - be provided with professional

development opportunities and consultation to help them maintain

accuracy and proficiency. Haugan offe red her services for

developing and providing supervision of Sculley in order to

provide such consultation and assistance. The Board did not

further utilize her services, however. (Sculley did not

ultimately receive any consultation or professional help ,

because he was terminated from employment.)

15. When Giacolone reviewed HauganÓs report, she became

very concerned about SculleyÓs competency. Giacolone met with

Sculley on a number of occasions to discuss some of her

perceived shortcomings with his wor k, which included: not

finishing work timely; not responding appropriately to parents;

omitting or misstating parentsÓ input in evaluation forms; and

dating tests incorrectly. During the meetings, Sculley appeared

to act ÐaloofÑ toward Giacolone. Sculley also seemed unable to

provide credible reasons or explanations for the mistakes in his

work. Giacolone and Sculley met to discuss these matters on

February 2, 6, and 14, 2012. There were also other brief

conversations between the two on a regular basis during that

month.

16. When Giacolone began looking into SculleyÓs work

issues, she was not aware that Sculley and Quave were having a

dispute. Quave had written a long email to Hrstka and Cassels

outlining her concerns about Sculley. The email was fo rwarded

to Giacolone on February 1, 2012, i.e., after she was already

conducting meetings with Sculley about his work. The Quave

email was not the impetus for GiacoloneÓs investigation into

SculleyÓs performance.

17. Giacolone found Sculley to be distra cted or confused

when discussing his work. In addition to the areas of

deficiency discussed above, Giacolone also said Sculley seemed

cognitively impaired during their conversations. Giacolone was

concerned about Sculley , but was not predisposed toward

t erminating his employment. In order to help Sculley retain his

position with the Board, Giacolone offered him the opportunity

to take some on - line training courses. Sculley said he could

not navigate the computer sufficiently well to do on - line

courses, so Giacolone provided assistance in that regard as

well. Ultimately, Sculley did not access the on - line training

because, allegedly, he felt it would not be beneficial to him.

According to Giacolone, Sculley apparently did not believe his

performance was subpar.

18. After their meeting on February 14, Giacolone was so

concerned that she decided to restrict Sculley from doing any

further student evaluations until such time as she could become

comfortable that he was not doing harm to the students. On

Mar ch 22, 2012, Giacolone directed Sculley to return all student

files in his possession to her office until further notice.

Sometime later, on or about March 27, 2012, Giacolone discovered

that Sculley had retained at least one file. A studentÓs file

was m issing, so an office employee began searching for it. The

file was found on SculleyÓs desk. Sculley allegedly told

Giacolone he did not remember the directive to return all of the

student files. Sculley did not testify to explain the

discrepancy of deli vering all his files to Giacolone but not

remembering the directive as it applied to one file.

19. Even though he was restricted from doing so, Sculley

continued working on an evaluation for at least one student.

Again, when confronted about this, Scull ey reportedly feigned no

knowledge of the prohibition against continuing to do

evaluations. Absent testimony from Sculley, it is impossible to

determine whether he had a legitimate reason for his actions.

20. Meanwhile, Raymond Klejmont determined that b ecause

Quave had initially suggested using Haughan to review SculleyÓs

files, it would be best to have the files reviewed by someone

else as well. Anthony Bobo (Bobo) - who later became a school

psychologist for the Board via contract Î was chosen to do t he

review. Bobo also found errors and Ðitems of concernÑ regarding

SchulleyÓs work. Bobo found the errors to be substantial.

21. Ultimately, Giacolone submitted a written

recommendation to Superintendent Cline that SculleyÓs employment

should be termina ted. Klejmont, as human resources director,

concurred with the recommendation. Cline, who had met with

Sculley and found him to be less than cogent during their

meeting, accepted the recommendation for termination of

employment. By letter dated June 4, 2012, Cline advised Sculley

that he would be recommending termination of SculleyÓs

employment at the upcoming Board meeting. On June 26, 2012, the

Board - Î in accordance to ClineÓs recommendation - - terminated

SculleyÓs employment.

22 . Sculley did not te stify at the final hearing to

contradict or rebut the allegations about his abilities.

Dr. RobinsonÓs testimony on SculleyÓs behalf, while credible,

fell short of addressing the specific concerns raised by Hrstka,

Cline , and Giacolone. Dr. Robinson was unaware of the reasons

for SculleyÓs employment termination; he had not read the Haugan

or Bobo reports , because he had retired by the time they were

issued; he only gave Sculley a satisfactory performance approval

for an unspecified period of time. Dr. R obinson established

only that Sculley had been a good employee in previous years.

The Discrimination Claim

23 . Sculley raised, as a defense to the allegations of

incompetence against him, that he was being discriminated

against by co - workers, especially Quave. There was no testimony

by Sculley to explain how the purported discrimination affected

a review of his competency, the stated reason for termination of

his employment. No competent, substantial evidence exists which

suggests that there is a correl ation between the alleged

discrimination claimed by Sculley and the allegations of

incompetency.

24 . None of the alleged discriminatory acts was

substantiated by competent testimony. So, even if it might

arguably be shown to relate to SculleyÓs work issu es, no facts

can be made on the record, except the fact that Sculley

complained of discrimination.

CONCLUSIONS OF LAW

25 . DOAH has jurisdiction over the parties to and the

subject matter of this proceeding pursuant to a contract with

the DeSoto County Sch ool Board. The proceedings are governed by

s ections 120.57 and 120.569, Florida Statutes (20 12 ). 1/

26 . The Superintendent of Schools for DeSoto County,

Florida, has the authority to recommend to the School Board that

an employee be suspended or dismissed from employment.

§ 1012.27, Fla. Stat.

27 . The School Board has the authority to terminate the

employment of or to suspend non - instructional personnel without

pay and benefits. See §§ 1012.22(1)(f) and 1012.40(2)(c), Fla.

Stat.

28 . The burden of proof in this proceeding is on the Board

to prove, by a preponderance of the evidence, just cause exists

to suspend or terminate the employment of Sculley. This case

does not involve the loss of a license or certification, so the

more stringent standard of clear and convincing evidence does

not apply even though it is somewhat penal in nature. McNeil v.

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

v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883, 884 (Fla. 3d DCA

1990).

29 . "Just cause" i s the standard of discipline applied to

actions against support personnel. In the absence of a rule or

written policy defining just cause, school boards have

historically had discretion to set standards which subject an

employee to discipline, including t ermination from employment.

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

1994). Nonetheless, just cause for discipline must rationally

and logically relate to an employee's conduct in the performance

of the employee's job duties and which is concerned with

inefficiency, delinquency, poor leadership, lack of role

modeling, or misconduct. State ex rel. Hathaway v. Smith , 35

So. 2d 650 (Fla. 1948); In re Grievance of Towle , 665 A.2d 55

(Vt. 1995).

30 . Historically, section 231.36, Florida S tatutes,

governed public education in this s tate. In 1999, the Florida

Legislature amended that statute to remove the absolute

discretion held by school boards when disciplining its

employees. The Legislature gave the State Board of Education

authority t o create rules to define just cause. In 2002, the

Legislature created the Florida K - 12 Education Code (the

ÐCodeÑ), transferring all provisions of the former

section 231.36 to the new Code, codified in chapter 1012.

31 . The rule promulgated by the Sta te Board of Education

to define just cause was initially found at Florida

Administrative Code Rule 6B - 4 and is now codified in rule 6A - 5.

Rule 6A - 5.56 states , in pertinent part:

Just causeÑ means cause that is legally

sufficient. Each of the charges up on which

just cause for a dismissal action against

specified school personnel may be pursued

are set forth in Sections 1012.33 and

1012.335, F.S. In fulfillment of these

laws, the basis for each such charge is

hereby defined:

* * *

(3) ÐIncompe tencyÑ means the inability,

failure or lack of fitness to discharge the

required duty as a result of inefficiency or

incapacity.

(a) ÐInefficiencyÑ means one or more of the

following:

1. Failure to perform duties prescribed by

law;

2. Failure to comm unicate appropriately

with and relate to students;

3. Failure to communicate appropriately

with and relate to colleagues,

administrators, subordinates, or parents;

4. Disorganization of his or her classroom

to such an extent that the health, safety or

welfare of the students is diminished; or

5. Excessive absences or tardiness.

(b) ÐIncapacityÑ means one or more of the

following:

1. Lack of emotional stability;

2. Lack of adequate physical ability;

3. Lack of general educational background;

or

4. Lack of adequate command of his or her

area of specialization.

* * *

32 . In this case , SculleyÓs inability to properly and

proficiently perform student psychological assessments

constitutes incompetency under the rule. Incompetency is one

of the grounds for termination of employment under

section 1012.33, Fl orid a Stat utes . The description of SculleyÓs

demeanor and confusion, uncontroverted by rebuttal evidence,

also proves incapacity and therefore incompetency.

33 . The Board has met it s burden of proof in this matter.

34 . The Employee Code of Conduct relevant to Board

employees such as Sculley sets forth the means of establishing

just cause. It also sets forth the manner in which disciplinary

action make be imposed. Although the C ode of Conduct allows for

counseling and an opportunity to comply with rules before

disciplinary action is taken, the counseling requirement is not

absolute. Further, when given the opportunity for assistance,

Sculley chose not to accept the assistance wh ich was offered. 2/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by

Petitioner, Desoto County School Board, upholding the

termination of the employment of Respondent, John B. Sculley 's,

for the reasons set forth above.

DONE AND ENT ERED this 7 th day of January , 2013 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSot o 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 7 th day of January , 2013 .

ENDNOTE S

1/ Unless specifica lly stated otherwise herein, all references

to Florida Statutes shall be to the 2012 version.

2/ The Employee Code of Conduct is not dispositive in this case.

It is discussed only because it was brought up in RespondentÓs

PRO.

COPIES FURNISHED :

Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

Shaina Thorpe, Esquire

Allen, Norton and Blue, P.A.

Suite 225

324 South Hyde Park Avenue

Tampa, Florida 33606

Karyn Gary, Superintende nt

DeSoto County School Board

530 LaSolona Avenue

Post Office Drawer 2000

Arcadia, Florida 34266

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Ton y Bennett, Commissioner

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.