13-004171TTS Lee County School Board vs. Stacey Landau Status: Closed Recommended Order on Monday, March 31, 2014.

Summary: School board proved teacher forged a doctor's form to support her request for accommodations due to a disability. This established just cause to terminate teacher. School board did not prove teacher involvement in forgery of two other forms.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 4171TTS

STACEY LANDAU,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Ne wton, II, of the

Division of Administrative Hearings (DOAH) heard this case in

F ort Myers, Florida, on December 12, 2013.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

STATEMENT OF THE ISSUE

Does Petitioner, Lee County School Board (Board or

District), have j ust ca u se to terminate the employment of

Respondent, Stacey Landau, from her position as a school teacher

for submitting fraudulent medical documentation in support of

applications for accommodations and benefits under the Americans

W ith Disabilities Act ( AD A ) and the Family Medical Leave Act

(FMLA) ?

PRELIMINARY STATEMENT

By petition dated September 3, 2013, the s uperintendent for

the Lee County School District sought termination of Ms. Landau ' s

employment. On October 22, 2013, the Board voted to suspend

M s. Landau ' s employment pending resolution of this proceeding.

On October 24, 2013, the Board referred this matter to DOAH for

conduct of a f inal hearing. The undersigned set the hearing for

December 12, 2013. The hearing was conducted as scheduled.

The Board presented testimony from Christine Christensen,

Ranice Monroe, and James Weiner. Board Exhibits 1 through 10

were accepted into evidence.

Ms. Landau testified on her own behalf and presented the

testimony of Bonnie Landau and Britton Thorne. Ms. La ndau ' s

Exhibits 1 through 7 and 9 through 12 were accepted into

evidence.

The Transcript of the proceeding was filed on January 10,

2014. The period for submitting proposed recommended orders was

extended at the parties ' request. The parties timely filed

proposed recommended orders , which have been considered .

FINDING S OF FACT

1. The Board owns and operates the public schools in Lee

County, Florida. It is responsible for hiring, terminating, and

overseeing all employees in the school district.

2. The D istrict has employed Ms. Landau since January 19,

1998. Most recently , she was assigned to work as a teacher of

students with disabilities at Patriot Elementary School.

3. Ms. Landau is an instructional employee and is governed

by the Collective Bargaini ng Agreement between the Board and the

Teacher ' s Association for Lee County (TALC) . The District

employs her pursuant to a professional services contract.

4. Ms. Landau holds a Florida e ducator ' s c ertificate. She

is certified in e lementary e ducation, En glish for s peakers of

o ther l anguages, and e xceptional s tudent e ducation.

5. Ms. Landau ' s performance assessments have always been

satisfactory or better. The District has not previously

disciplined her.

6. Ms. Landau submitted documents to the Distri ct in 2012

and 2013 to support her requests for accommodations under ADA and

FMLA . The documents included three dated July 25, 2012; August

16, 2012; and June 24, 2013.

7. During a July 24, 2013, meeting of the District ADA

Committee to review Ms. Land au ' s most recent request, members of

the committee developed concerns about the authenticity of the

June 24, 2013, document. It was one of three documents submitted

by Ms. Landau that bore the signature of James Weiner , M.D. The

other two were dated July 25, 2012 , and August 16, 2012, also

purportedly signed by Dr. Weiner.

8. Ranice Monroe, the D istrict ' s d irector of Professional

Standards and Equity, contacted Dr. Weiner ' s office to determine

the authenticity of the signature.

9. After Dr. Weiner ' s sta ff advised Ms. Monroe that neither

the doctor n or his staff had completed or signed the form, the

District had Dr. Weiner review the other two forms to determine

their authenticity.

10. Dr. Weiner is a physician who works for the Sypret

Institutes, a neuro surgical practice. He also worked , during the

relevant period , for Southwest Florida Neurosurgical and

Rehab ilitation Associates.

11. Dr. Weiner practices anesthesia , pain management , and

rehabilitative medicine. He treated Ms. Landau for several

yea rs. During all time periods relevant to this proceeding,

Ms. Landau was Dr. Weiner's patient.

12. Ms. Landau was also the patient of an ophthalmologist,

Dr. Elmquist, who was treating her for her deteriorating

eyesight. Information provided by his offi ce is not relevant to

the issues in this proceeding.

13. Throughout his career , Dr. Weiner has consistently

followed the same practice when completing forms , such as forms

for worker s' compensation patients, medical certifications for

benefits, and medica l certifications for accommodations. He

personally completes the forms by hand, usually during the

evening at home. He never signs the forms in blank. Ordinarily ,

Dr. Weiner ' s staff does not complete these types of forms for

him.

14. Dr. Weiner ' s offi ce does not have and has never had a

typewriter. The forms that he completes for patients are never

completed by typewriter or other mechanical printing device.

Dr. Weiner keeps copies of forms that he completes in his

patient s ' file s , whether he provide s them to the patient, an

employer, or an insurance carrier.

July 25, 2012, Form

15. Ms. Landau submitted a form titled , Medical

Certification of ADA Qualifying Impairment dated July 25, 2012,

in support of her request for accommodations due to a disabilit y.

The form has four sections seeking identified information and

provides room for physician - identifying information and the

physician ' s signature.

16. " Cervical spasmodic torticollis " is handwritten in the

section asking for the " [n]ature and severity o f the employee ' s

impairment. " " Chronic " is handwritten in the section seeking

" [p] ermanent or long term impact. " The handwriting for the

responses in those two sections is the hand writing of Dr. Weiner.

He completed those sections of the form.

17. Dr. W einer also completed the section of the form

providing the name and contact information for the attending

physician, which is also in his handwriting.

18. The patient name on the form is in handwriting that

Dr. Weiner says is not his.

19. Handwriting that Dr. Weiner says is not his provides

the response called for by a section stating: " Major life

activities substantially limited by impairment . . . . "

20. The response states that, among other things,

Ms. Landau has a limited ability to engage in daily a ctivities

with her son, grocery shop, carry heavy objects, lift items out

of the car, and walk.

21. The following section seeks " [w]ork related

restrictions that necessitate a reasonable accommodation for this

employee . " The response, in handwriting tha t Dr. Weiner says is

not his, states:

some physical restraint, deflecting

aggressive attacks, [illegible] emotional

stress that see daily and extend throughout

the long [illegible]. Moving furniture to

put classroom back together [illegible] has

[illegibl e].

22. Dr. Weiner theorized that someone modified a form that

he had completed changing the responses in the two sections

quoted above. The physical evidence is not consistent with the

theory. The form has lines on which to provide the responses.

The lines on all sections in question are complete. There is

nothing indicating that text on them was erased or pasted over.

The writing is on the lines with the loops of letters such as

" ys " and " fs " crossing below the lines in a natural manner.

23. There is also plausible testimony from Ms. Landau ' s

mother, also a patient of Dr. Weiner, that on occasion , his staff

has completed parts of forms that he signs.

24. Consideration of the persuasive and credible evidence

does not result in the conclusion that it is more probable than

not that Ms. Landau caused sections of the July 25 , 2012, form to

be altered after Dr. Weiner completed it. It is probable,

accepting Dr. Weiner ' s testimony that he never signs blank forms,

that in this instance , his staff assisted him in completing the

form.

25. Comparing the copy of the July 25 , 2012, Medical

Certification form that Ms. Landau provided the school with the

copy of the form, if any, in Dr. Weiner ' s records , would have

demonstrated whether the form that Ms. Landau pro vided to the

school was one that Dr. Weiner had prepared. The record does not

contain evidence of a file copy .

August 16, 2012, Form

26. The responses on the Medical Certification form dated

August 16, 2012, that Ms. Landau provided the District are typed

or otherwise mechanically printed. Only the signatures of

Dr. Weiner are in script.

27. The responses are typed or printed on pieces of paper

that have been obviously pasted or taped over the lines on the

form where responses are to be written. This inc ludes the

section for the address of the provider.

28. The response to the " [n]ature and severity of the

employee ' s impairment " section is markedly different from that of

the form dated July 25, 2012 , less than a month earlier . The

printed response states : " Positive cervical nodes with

intra - abdominal metastases and tumor invasion. "

29. The difference between the July 25 and August 16 , 2012,

response to the " [ p ] ermanent or long term impact " section is also

marked. The printed response states: " Ms. Landa u will require

routine blood tests and pet scans to monitor for possible future

growth. Ms. Landau requires monitoring and assistance with food

consumption and nutrition. "

30. The responses to the other two sections calling for

narrative responses are als o very different from the responses in

the July 25, 2012, form.

31. These differences, the credible and persuasive

testimony of Dr. Weiner that he has never used printed responses

o n these sorts of forms , and the fact that the responses are

plainly added to the form over the lines provided, make it more

probable than not that Ms. Landau altered the form intending to

deceive the Board .

June 24, 2013, Form

32. This form is an acknowledged forgery. Britton Thorne,

an unemployed family friend of Ms. Landau fo rged the responses on

the four - page form and Dr. Weiner ' s signature on it.

33. Because he was unemployed and Ms. Landau needed

assistance due to her vision impairment, Mr. Thorne was living

with her, helping with household chores, providing

transportatio n, and attending doctor appointments with her.

34. Mr. Thorne testified that he grew frustrated with his

inability to have the form completed by Dr. Elmquist and was

unwilling to leave the form at the doctor ' s office for

completion. Consequently , he compl eted the form. He signed

Dr. Weiner ' s name because he had a prescription from Dr. Weiner

available with a signature to copy.

35. Mr. Thorne then sealed the forged form in an envelope.

He drove Ms. Landau to the District office to deliver the

envelope w ith the forged form.

36. Mr. Thorne did not tell Ms. Landau what he had done

until Dr. Weiner ' s office advised Ms. Landau that he was

discharging her because he had learned of the forgery from the

District.

37. Mr. Thorne ' s demeanor while testifying and hi s

acknowledged concern about possible criminal prosecution for his

actions made his testimony credible and persuasive.

38. There is no credible , persuasive evidence that

Ms. Landau knew of Mr. Thorne ' s forgery at the time she submitted

the form to the Dis trict.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of the Petition

pursuant to School Board Policy 1.16(6)(c); sections

1012.40(2)(c), 120.569, and 120.57, Florida Statutes (2013) 1/ ; and

the contract between the Board and DOAH .

40. S ections 1012.22(1)(f) and 1012.40(2)(c) grant the

School Board authority to terminate and/or suspend instructional

personnel without pay and benefits.

41. S ection 6.024 of the TALC Collective Bargaining

Ag reement and section 1012.33(1)(a) establish " just cause " as the

standard for teacher discipline.

42. The Board must prove its charges by a preponderance of

the evidence. § 120.57(1)(j), Fla . Stat . ; McNeill v. Pinellas

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

" Preponderance of evidence is defined as evidence ' which as a

whole shows that the fact sought to be proved is more probable

than not. ' State v. Edwards , 536 So. 2d 288, 292 n.3 (Fla. 1st

DCA 1988). " Dufour v. State , 69 So. 3d 235, 252 ( Fla. 2011);

see a lso , Escambia Cnty. Elec. Light & Power Co. v. Sutherland ,

61 Fla. 167, 193; 55 So. 83, 92 (1911).

43. The Board br ought five charges against Ms. Landau. All

rest on the Board ' s contention that Ms. Landau forged or knew of

the forgery of the June 25, 2012; August 16, 2012; and July 24 ,

2013 , forms.

Misconduct in Office -- Rule 6A - 5.056

44. First, the Board charges that Ms. Landau committed

misconduct in office , as defined in Florida Administrative Code

Rule 6A - 5.056, by violating the Code of Ethics of the Education

Profession in Florida (Code of Ethics) , the Principles of

Professional Conduct for the E ducation Profession in Florida

(Principles of Professional Conduct) , and School Board p olicy.

Rule 6A - 5.056 identifies several grounds for dis missal. Rule

6A - 5.056(2) defines " misconduct, " the offense charged here , as:

(2) " Misconduct in Office " means one or

more of the following:

(a) A violation of the Code of Ethics of

the Education Profession in Florida as

adopted in Rule 6B - 1.001, F.A.C. ;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule

6B - 1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student ' s

learning environment; or

(e) Behavior that reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties.

To the extent the Board proved any one of the five charges

listed in the definition , it proved this charge. St. Lucie Cnty.

Sch. Bd. v. Contoupe , Case No. 13 - 0 410TTS (Fla. DOAH Nov. 7,

2013; Fla. St. Lucie Cnty . Sch . Bd. Jan. 15, 2014); Miami - Dade

Cnty. Sch. Bd. v. McBride , Case No. 11 - 4933TTS (Fla. DOAH June

31, 2012; Miami - Dade Cnty. Sch. Bd. Sept. 25, 2012).

Failure to Sustain Highest Degree of Ethical Conduct --

Rule 6A - 10.080(3)

45. Second, the Board charges that Ms. Landau failed to

sustain the highest degree of ethical conduct as articulated by

r ule 6A - 10.080(3). Rule 6A - 10.80, formerly r ule 6B - 1.001, is the

Code of Ethics. Rule 6A - 10.80(3) provides:

Aware of the importance of maintaining the

respect and confidence of one ' s colleagues,

of students, of parents, and of other

members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

4 6. The Board proved that Ms. Landau, by submitting the

altered August 16, 2012, form did not sustain the highest degree

of ethical conduct.

Failure to Maintain Honesty in all Professional Dealings --

Rule 6A - 10.081(5)(a)

4 7 . Third, the Board charges that M s. Landau failed to

maintain honesty in all professional dealings as mandated by r ule

6A - 10.081(5)(a), one of the Principles of Professional Conduct

created by former r ule 6B - 1.006. Rule 6A - 10.081(5)(a) obliges

educational professionals to " maintain hones ty in all

professional dealings. "

4 8 . The Board proved this charge. Ms. Landau ' s forgery or

alteration of the August 16, 2012, form was dishonesty in her

professional dealings with the Board.

Submitting Fraudulent Information -- Rule 6A - 10.081(5)(h)

4 9 . Fou rth, t he Board charges that Ms. Landau submitted

fraudulent information or documentation in connection with

professional activities which is prohibited by r ule

6A - 10.081(5)(h ) . Rule 6A - 10.081(5)(h) requires that an educator

" [s]hall not submit fraudulent information on any document in

connection with professional activities. "

50 . Ms. Landau submitted fraudulent information, the

August 16, 2012, form, in connection with her professional

activity, her employment as an educator with the Board. The

Board pr oved this charge.

Failure to Obey School Board Policies --

School Board Policies 5.02 and 5.29

5 1 . Fifth, the Board charges Ms. Landau violated School

Board Policy 5.02, Professional Standards , and School Board

Policy 5.29, Complaints Related to Employees. Among other

things, Policy 5.02(2) requires Board faculty to demonstrate

" [d]edication to high ethical standards. " By submitting the

forged or altered August 16 , 2012, form, Ms. Landau failed to

demonstrate the required dedication to high ethical standa rds.

The Board proved that Ms. Landau violated Policy 5.02.

5 2 . Policy 5.29(1) states that all employees " are expected

to meet the specific standards described in the . . . Principles

of Professional Conduct for the Education Profession in Florida

as desc ribed by the State Board of Education Rule . . . . "

M s. Landau failed to meet standard s established by the Principles

of Professional Conduct , but Policy 5.29 does not establish

standards or prescribe sanctions for violations of standards. It

is only a pr ocedural policy governing making complaints and the

investigation of complaints.

Immorality -- Rule 6A - 5.056(1)

5 3 . Section 1012.33(1)(a) identifies " immorality , " as

defined by State Board of Education r ule, to be just cause for

dismissal of instructional personnel on annual contract. Rule

6A - 5.056(1) defines immorality. It states: "' Immorality ' means

conduct that is inconsistent with the standards of public

conscience and good morals. It is conduct that brings the

individual concerned or the education profession into public

disgrace or disrespect and impairs the individual ' s service in

the community. "

5 4 . Establishing this offense requires proving th at

community members knew of the offending conduct and that the

conduct would bring the individual or t he profession into public

disgrace or impair the individual ' s service. The evidence does

not establish this element. Consequently , the Board did not

prove this charge.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is R ECOMMENDED that the School Board enter a final order

finding just cause to terminate the employment of Stacey Landau

and dismissing her from her position as a teacher with the Lee

County School District.

DONE AND ENTERED this 31st day of March , 2014 , in

T allahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 31st day of March , 2014 .

ENDNOTE

1/ Unless otherwise noted, a ll statutory references are to

Florida Statutes (2013).

COPIES FURNISHED:

Pam Stew art, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Nancy J. Graham

Superintendent of Schools

Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florid a 33966 - 1012

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Fl orida 33966 - 1012

Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Rec ommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.