12-002593TTS Glades County School Board vs. Alice Gardner Status: Closed Recommended Order on Monday, February 11, 2013.

Summary: School Board did not prove just cause to discipline teacher; it did not introduce evidence showing that alleged misconduct in office impaired the teacher's effectiveness.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLADES COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2593TTS

)

ALICE GARDNER , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on November 14,

2012, in Moore Haven, Florida , before Thomas P. Crapps, a

designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Robert C. Shearman, Esquire

Henderson, Franklin, Starnes

and Holt, P.A.

1715 Monroe Street

Ft. Myers, Florida 33901

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides

Suite 110

29605 U.S. Highway 19 , North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Petitioner established Ðjust causeÑ to discipline

Respondent as a teacher.

PRELIMINARY STATEMENT

On August 3, 2012, Petitioner, Glades County School Board

(School Board), transmitted the request by Respondent, Alice

Gardner (Ms. Gardner) , to DOAH for an administrative hearing.

The undersigned was assigned the case, and set a hearing for

September 24, 2012. The School Board filed a moti on for

continuance which the undersigned granted. The u ndersigned reset

the case for final hearing on November 14, 2012.

At the November 14, 2012, hearing, the School Board

presented the testimony of C.H., Wayne Aldrich ( Superintendent

Aldrich), Debra Dav is (Principal Davis), Tina Wills (Ms. Wills),

and Ms. Gardner. The parties introduced into evidence joint

Exhibits numbered 2, 5 through 9, 12 through 22 , and 24. The

School Board introduced into evidence Exhibits 1, 3, 4 , and 10,

over objection. Ms. Ga rdner did not present any witnesses.

On December 3, 2012, a one - volume Transcript was filed with

DOAH. The parties timely submitted proposed recommended orders

on December 13, 2012, which have been considered in the

preparation of this Recommended Order .

FINDING S OF FACT

1. Since 2004, Ms. Gardner has been employed by the Glades

County School District as a teacher. During the 2009 - 2010 school

year, she taught language arts to middle school students at West

Glades School. During the relevant time perio d, Ms. Gardner

worked under a professional service contract. A teacher's

professional service contract automatically renews each year, and

the contract can be terminated only by a showing of Ðjust causeÑ

or by performance deficiencies outlined in section 1012.34,

Florida Statues.

2. On April 16, 2010, Ms. Gardner was teaching language

arts to seventh grade students. The students were supposed to be

working on the language arts assignment. However, as Ms. Gardner

walked around the class, she found some s tudents working on their

math homework. Frustrated by students doing math homework during

her language arts class, Ms. Gardner confiscated the students'

math work. In one instance, Ms. Gardner tore a student's math

homework in half. One of the students who se math work

Ms. Gardner confiscated was C.H. C.H. was generally described as

a "good student." Ms. Gardner placed C.H.'s math workbook on a

table near Gardner's desk at the front of the room, and

redirected C.H. to the language arts assignment.

3. At some point in the class, C.H. walked up to the front

of the classroom and removed her math workbook from the table

without Ms. Gardner's permission. As C.H. turned to walk back

with her book, Ms. Gardner forcefully grabbed C.H.'s arm from

behind. C .H. credibly testified that Ms. Gardner "grabbed my arm

and turned me around and pushed me, and my books fell." C.H.

started crying, and walked out of the classroom. As C.H. was

leaving the classroom, Ms. Gardner told C.H. to return to her

desk. C.H. st ated that she was crying because she was "shocked."

4. C.H. walked to the School's office , which is in the same

hallway as Ms. Gardner's class. When she arrived at the office,

C.H. was crying and visibly upset. The school guidance counselor

took C.H. to speak with Principal Davis. Principal Davis found

C.H. to be "distraught, crying, [and] shaking." Principal Davis

spoke with C.H. to determine why the student was upset. C.H.

informed Principal Davis that Ms. Gardner had become angry with

C.H., and t hat Ms. Gardner had snatched C.H.'s books, grabbed her

arm and pushed her. Based on the seriousness of the allegation,

Principal Davis decided to immediately investigate C.H.'s claims

by obtaining statements from C.H.'s classmates.

5. After the language arts class, the next class for C.H.

and her classmates was math taught by Ms. Wills. Before the math

class began, Ms. Gardner came to Ms. Wills' class and gave her

C.H.'s workbook and other students' papers. Ms. Gardner informed

Ms. Wills that several o f the students had been doing math

homework when the students should have been doing their language

arts work. Ms. Wills credibly testified that Ms. Gardner was

"really upset" with students doing their math homework in her

class, and appeared agitated.

6. Shortly after Ms. Wills' class began, Principal Davis

came to speak with the students. Principal Davis released

Ms. Wills to take an early lunch, and then asked the students to

write down anything "bothersome" that has happened in

Ms. Gardner's class during the prior period. A majority of the

students provided written statements that , in essence ,

corroborated C.H.'s story.

7. After reviewing the students' statements, Principal

Davis decided she needed to investigate further. Principal Davis

met w ith Ms. Gardner and advised her about C.H.'s allegation that

Ms. Gardner had inappropriately touched C.H. Because the

investigation could result in discipline, Ms. Gardner decided to

have a union representative present when she gave her statement.

Furthe r, Principal Davis informed Ms. Gardner that Ms. Gardner

should go home until the investigation was completed.

8. On April 21, 2010, Ms. Gardner gave her statement to

Principal Davis. Ms. Gardner admitted to confiscating C.H.'s

math notebook and calcul ator. Ms. Gardner indicated that later

in the class C.H. walked across the room and retrieved her math

notebook without permission. Ms. Gardner stated that she merely

"touched" C.H.'s arm to redirect the student, and to put the math

notebook back on the table. C.H. dropped the math notebook, and

left the class. According to Ms. Gardner's interview, she did

not forcefully grab C.H.'s arm.

9. Ms. Gardner's testimony that she merely "touched" C.H.'s

arm was consistent with the interview given to Princi pal Davis.

The undersigned finds Ms. Gardner's characterization that she

only "touched" C.H.'s arm without force not to be credible.

Ms. Gardner's testimony concerning the events was often evasive

on key points. For example, when asked if she recalled that C.H.

was crying when leaving the classroom, Ms. Gardner indicated that

she did not. Yet, in her deposition, taken just a week earlier,

she testified that C.H. was crying when she left the classroom.

Similarly, Ms. Gardner was evasive concerning ques tions about

whether or not she acted in frustration or her understanding that

the change in her contract status was the result of her touching

C.H. As a result of Ms. Gardner's evasiveness, the undersigned

found her credibility damaged.

10. C.H. did not receive any physical injury from the

incident on April 16, 2010.

11. After completing her investigation on April 21, 2010,

Principal Davis provided Wayne Aldrich, s uperintendent for Glades

County School Board, with the following recommendation:

As a res ult of a battery allegation by a

student against Ms. Gardner, I have conducted

a thorough investigation and found the

allegation to be substantial. Ms. Gardner

has been suspended with pay since the

incident occurred on Friday, April 16. As a

result, I ha ve followed protocol required by

the Florida Department of Education Office of

Professional Practices and I am recommending

the following action:

1. Placement of a narrative of my

investigation in her personnel file .

2. Change of her contractual status to

fourth year annual for 2010 - 2011 school year .

3. Recommendation of termination if any

further substantiated incidents of

intentional physical contact with a student

occur .

I am requesting that she return to the

classroom on Friday, April 23, 2010.

1 2. Principal Davis testified that she considered the

recommended change in Ms. Gardner's contract status from a

professional service contract to a "fourth year annual contract"

as less severe than termination or suspension. A "fourth year

annual contract " would allow Ms. Gardner to return to

professional service contract after being on an annual contract

for one year. Principal Davis explained that Ms. Gardner had

been evaluated as a high - performing teacher in the past, and it

was hoped that she would re turn to that level after this

discipline.

13. At the end of the 2009 - 2010 school year, Principal

Davis evaluated Ms. Gardner as "needs improvement." Under the

comments section, Principal Davis noted "offer to wait for 2010

FCAT declined." There was no evidence tying this "needs

improvement" evaluation to the incident that occurred on

April 16, 2010.

14. Superintendent Aldrich reviewed Principal Davis'

investigation and recommendation. Based on his review,

Superintendent Aldrich recommended that the School Board follow

Principal Davis' recommendation, including the change in

Ms. Gardner's contract status. Similar to Principal Davis,

Superintendent Aldrich believed that the change in Ms. Gardner's

contract status was less severe than a suspension.

15 . Superintendent Aldrich testified that a teacher should

use physical force only "if the student was out of control and

would be in a position to do physical harm to another student or

themselves." However, no School Board Policy concerning the use

of ph ysical force was offered into evidence.

16. The School Board, without notice to Ms. Gardner

concerning her rights to an administrative hearing, adopted

Principal Davis' recommendations. Ms. Gardner , subsequently ,

requested a formal administrative hearin g and reconsideration of

the School Board's decision. The School Board denied her

request, finding that Ms. Gardner had waived her right to a

hearing. Ms. Gardner filed an appeal.

17. The Second District Court of Appeal found the

following:

It is undisp uted that the Board did not give

Ms. Gardner written notice of her right to

seek administrative review and the time

limits for requesting a hearing. Under these

circumstances, the Board failed to provide

Ms. Gardner with a point of entry into the

administ rative process before taking adverse

action on her contract status. It follows

that Ms. Gardner did not waive her right to

request a formal hearing.

Consequently, the appellate court reversed the School Board's

decision, and remanded the case for furth er proceedings. Gardner

v. Sch. Bd. of Glades Cnty. , 73 So. 3d 314 (Fla. 2d DCA 2011).

18. While Ms. Gardner's appeal was pending before the

Second District Court of Appeal, Ms. Gardner worked under the

fourth year annual contract for 2010 - 2011 school year. At the

end of the 2010 - 2011 school year, Ms. Gardner's annual contract

was not renewed.

19. On remand, the School Board issued a May 16, 2012,

letter, notifying Ms. Gardner of her rights to an administrative

hearing. The School Board framed the issue as Ð to challenge the

change in her contract status from a professional service

contract for fourth year annual contract. Ñ In the Joint Pre -

Hearing Stipulation, the parties identified a factual issue for

resolution as Ð [w]hether Gardner's physical co ntact with the

student, C.H., constitutes Ðjust causeÑ for discipline. Ñ

Further, the parties Ó stipulation identified three disputed

issues of law: 1) Whether the disciplinary options available to

Petitioner included placement of Ms. Gardner on a fourth y ear

annual contract status; 2) w hether the placement of Ms. Gardner

on fourth - year annual contract status was the appropriate

discipline; and 3) w hether the School Board's action in denying

Ms. Gardner's request for a formal hearing in July 2010 renders

t he placement of Gardner on a fourth - year annual contract status

for the 2010 - 2011 school year, and the non - renewal of her annual

contract at the end of the 2010 - 2011 school year void ab initio .

20. Before considering the legal issues identified by the

par ties, it is clear that the factual dispute of whether or not

Ðjust causeÑ exists must be addressed first. If Ðjust causeÑ

does not exist, then the issue of the penalty becomes moot. At

the hearing, the parties presented testimony concerning the facts

und erlying the School Board's action here, and whether or not

Ðjust causeÑ existed to sanction Ms. Gardner.

CONCLUSIONS OF LAW

21 . DOAH has jurisdiction over the parties and subject

matter of this proceeding pursuant to a contract with the Glades

County Sc hool Board. The proceedings are governed by sections

120.57 and 120.569, Florida Statutes (2012).

22. The School Board has the authority to operate, control

and supervise the public schools in its district. Art. IX,

§ 4(b), Fla. Const. This authorit y includes the power to suspend

and dismiss employees and to adopt personnel policies. See

§§ 1001.42(5), 1012.22(1)(f), 1012.23(1), and 1012.33, Fla. Stat.

(2010). 1/

23 . Generally, a professional service contract is a

continuous contract which renews a utomatically. A profession al

service contract, however, "may be suspended or dismissed at any

time during the term of the contract for Ðjust causeÑ as provided

in paragraph (1)(a)[,]" 2/ or not renewed by a school district

based upon uncorrected performanc e deficiencies , pursuant to

section 1012.34, Florida Statutes. 3/ , 4/ The School Board must

prove by the preponderance of the evidence that "just cause"

exists. See McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476

(Fla. 2d DCA 1996).

24. "'Just cause' includes, but is not limited to, the

following instances, as defined by rule of the State Board of

Education: misconduct in office, incompetency, gross

insubordination, willful neglect of duty, or conviction of a

crime involving moral turpitude." § 1012. 33(1)(a). This "just

cause" list is not exhaustive, and the statute recognizes that

other wrong doing may also constitute "just cause," if the act

meets the same magnitude or seriousness as the listed offenses. 5/

25. Here, the parties tried by consent the issue of whether

or not the School Board established by preponderance of the

evidence "just cause" by proving that Ms. Gardner is guilty of

"misconduct in office." 6/

26. As it existed during the relevant time frame, rule 6B -

4.009(3) defined "misconduc t in office" as "a violation of the

Code of Ethics of the Education Profession as adopted in Florida

Administrative Code Rule 6B - 1.001, and the Principles of

Professional Conduct for the Education Profession in Florida as

adopted in Florida Administrative Code Rule 6B - 1.006, which is so

serious as to impair the individualÓs effectiveness in the school

system." 7/

27. The Principles of Professional Conduct for the

Education Profession found in rule 6B - 1.006 provides, in

pertinent part, the following:

(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 studentÓs mental

and/or physical health and/or safety.

* * *

(e) Shall not inten tionally expose a student

to unnecessary embarrassment or

disparagement.

28. Applying these rules of law to the facts of this case,

the School Board has failed to establish "just cause" to

discipline Ms. Gardner's employment. Specifically, the School

Bo ard failed to bring forward evidence showing that Ms. Gardner's

acts on April 16, 2010, impaired her effectiveness in the school

system.

29. At the onset, the record here shows by a preponderance

of the evidence that Ms. Gardner acted inappropriately in u sing

physical force to compel C.H.'s behavior. The record showed that

Ms. Gardner acted in anger, grabbing C.H.'s arm, turning her

around, and pushing her forcefully in order to have C.H. drop the

confiscated math workbook. These actions created a condit ion

harmful to learning and demonstrated a lack of self - control by

Ms. Gardner. Therefore, the School Board proved that Ms. Gardner

violated rule 6B - 1.006(3)(a). 8/

30. Similarly, the School Board also proved by a

preponderance of the evidence that Ms. Gardner violated rule 6B -

1.006(3)(e) by intentionally exposing C.H. to unnecessary

embarrassment. C.H. credibly testified that she was "shocked" by

Ms. Gardner's actions and that she left the classroom crying and

became hysterical. C.H.'s response was n ot typical of her, as she

was described by both Principal Davis and Ms. Gardner as a model

student. Although Ms. Gardner did not have a specific intent to

embarrass or disparage C.H., she did have the intent to use

physical force to obtain C.H.'s complian ce. The result was C.H.

dropping her books and leaving the class crying and emotionally

distraught. Under these facts , the undersigned finds that the

School Board showed by a preponderance of the evidence that

Ms. Gardner intentionally exposed C.H. to e mbarrassment.

31. The School Board did not, however, bring forward

sufficient evidence showing that the incident on April 16, 2010,

impaired Ms. Gardner's effectiveness in the school system. The

facts concerning this question are a close call. On one ha nd, the

undersigned recognizes that at the moment that Ms. Gardner angrily

grabbed C.H. in an effort to assert classroom control, Ms. Gardner

was not acting as an effective teacher. However, there is no

evidence outside of this one moment showing that Ms. Gardner was

ineffective. The only marginal evidence of Ms. Gardner's

effectiveness concerned her teacher performance appraisal for

2009 - 2010 school year. The teacher performance appraisal shows

overall that Ms. Gardner "need[ed] improvement," and contai ned

comments that the evaluator offered to wait to conduct the

evaluation until after the 2010 Florida Comprehensive Assessment

Test (FCAT) scores were received, but Ms. Gardner declined to wait

for the scores. The School Board did not offer any evidence

showing how Ms. Gardner's performance appraisal reflected that she

was not effective based on the April 16, 2010, incident.

Ms. Gardner's performance appraisal does not contain any statement

tying her "need[ed] improvement" rating to the actions of

inapp ropriately using physical force on C.H. In fact, a review of

Ms. Gardner's performance appraisal shows that she was rated as

meeting expectations in certain areas, and needing improvement in

other areas. For example, the performance appraisal shows that

Ms. Gardner was rated as "meeting expectations" in an area

identified as "Intervention/Direct Services." This

"Intervention/Direct Services" section rated, among other factors,

whether a teacher "[f]oster[s] student responsibility, appropriate

social be havior, integrity, valuing of cultural diversity, and

respect for self and others by role modeling and learning

activities." In contrast, the performance appraisal also shows

Ms. Gardner as needing improvement in an area titled

"Administrative Management. " "Administrative Management"

evaluated, in part, whether Ms. Gardner "maintain[s] a positive ,

organized , and safe learning environment." Consequently, one may

find facts on both sides of the question concerning Ms. Gardner's

effectiveness in the school system. Therefore, Ms. Gardner's

performance appraisal for 2009 - 2010 has only marginal value, and

does not support a finding that the incident of misconduct

impaired her effectiveness as a teacher in the school district.

RECOMMENDATION

Based on the foreg oing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Glades County School Board enter

a final order finding:

1) The record contains insufficient evidence of "just

cause" in order to discipline Ms. Gardner; and

2) Pursuant to section 1012.33(6)(a), Florida Statutes

(2010), immediately reinstate Ms. Gardner under her professional

service contract and pay her back salary.

DONE AND ENTERED this 11th day of February , 2013 , in

Tallahassee, 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

D ivision of Administrative Hearings

this 11th day of February , 2013 .

ENDNOTE S

1/ Unless stated otherwise, all references in the Recommended

Order shall be to the 2010 version.

2/ § 1012.33(6)(a), Fla. Stat. (2010).

3/ § 1012.33(e), Fla. Stat. (201 0).

4/ The legislature extensively revised section 1012.33(3)(a),

Florida Statutes (2010), so that as of July 1, 2011, a district

school board can no longer issue professional service contracts.

Ch 2011 - 1, § 13, Laws of Florida. See Orange C n ty Sch. Bd . v.

Rachman , 87 So. 3d 48, 48 - 49 n.1 (Fla. 5th DCA 2012).

5/ See Miami - Dade Cnty Sch . Bd. v. Pusey , Case No. 12 - 0808TTS,

19 - 34 (Dec. 26, 2012), citing Dietz v. Lee Cnty. Sch. Bd. , 647

So. 2d 217, 218 - 19 (Fla. 2d DCA 1994)(Blue, J., specially

concurring) ("We assume that drunkenness and immorality, which are

not included in the non - exclusive list of sins [set forth in

section 231.36(1)(a), Florida Statutes (2001), the predecessor of

Ðjust causeÑ , would also be

grounds fo r dismissal . . . . In amending section 231.36 and

creating a new contract status for teachers (professional

service) and by failing to further define Ðjust causeÑ , the

legislature gave school boards broad discretion to determine when

a teacher may be dis missed during the contract term. . . . I

agree with the majority -- that the legislature left that

determination to the respective wisdom of each school board by

providing no definite parameters to the term 'just cause.'").

6/ In the submission of the Pro posed Recommended Orders, the

School Board and Ms. Gardner recognize that the "just cause"

issue concerns whether or not the facts show that she is guilty

of "misconduct in office." See School Board's Proposed

Recommended Order at page 4, and Respondent's Proposed

Recommended Order at page 11. Thus, the parties tried this issue

by consent.

7/ On July 8, 2012, Florida Administrative Code Rule 6B - 4.009,

was repromulagated and transferred to the current version of

Florida Administrative Code Rule 6A - 5.056. Rule 6A - 5.056 is

inapplicable to the instant case because it took effect July 8,

2012, after Ms. Gardner's alleged misconduct on April 16, 2010.

See Anglickis v. Dep't of Prof'l Reg ., 593 So. 2d 298, 300 (Fla.

2d DCA 1992)("[T]his rule was not in effect at the time of the

audit; therefore, appellants cannot be found to have violated

this rule.").

8/ The School Board did not allege or attempt to prove that

Ms. Gardner's actions rose to the level of "corporal punishment"

which is the "moderate use of phy sical force or physical contact

by a teacher or principal as may be necessary to maintain

discipline or to enforce a school rule . . ." Although

Superintendent Aldrich and Principal Davis both testified that it

was a school policy prohibiting a teacher fr om touching a student

to compel compliance in the classroom, the School Board failed to

offer into evidence the policy. Consequently, there can be no

finding that Ms. Gardner violated this unidentified School Board

policy, and to what extent that she viol ated, if at all.

COPIES FURNISHED:

Mark F. Kelly, Esquire

Kelly and McKee, P.A.

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

Robert C. Shearman, Esquire

Henderson, Franklin, Starnes

and Holt, P.A.

1715 Monroe Str eet

Fort Myers, Florida 33901

Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

Scott Bass, Superintendent

Glades County School Board

400 10 th Street

Moore Haven, Florida 33471

Dr . Tony Bennett, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1 24 4

325 West Gaines Stree t

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 ag ency that

will issue the Final Order in this case.