14-000874TTS Osceola County School Board vs. Kristie Gilmore Status: Closed Recommended Order on Friday, June 19, 2015.

Summary: Petitioner established just cause to terminate the employment of Respondents, Mona Sagar and Kristie Gilmore.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OSCEOLA COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 0873TTS

MONA SAGAR,

Respondent.

______________________________/

OSCEOLA COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 0874TTS

KRISTIE GILMORE,

Responden t.

______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in th ese case s

on March 18 through 20, 2015, in Kissimmee, Florida. The parties

appeared before Adm inistrative Law Judge Lynne Quimby - Pennock of

the Division of Administrative Hearings (Division).

APPEARANCES

For Petitioner: Wayne Helsby , Esquire

Marc Aaron Sugerman, Esquire

Allen, Norton and Blue, P.A.

Suite 100

1477 West Fairbanks Avenue

Winter Park, Florida 32789

For Respondent Mona Sag a r :

Roger L. Weeden, Esquire

Law Office of Roge r L. Weeden

128 East Livingston Street

Orlando, Florida 32801

For Respondent Krist ie Gilmore :

Tobe M. Lev, Esquire

Egan, Lev and Siwic a, P.A.

231 East Colonial Drive

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

The issue s in th ese case s are whether Petitioner, Osceola

County School Board (School Board or Petitioner) , has just cause

to terminate Respondent s Mona Sagar and Krist ie Gilmore from

their employment contract s.

PRELIMINARY STATEMENT

By letter dated January 21, 2014, Melba Luciano , the

superintendent of the School District of Osceola County Florida

(School District), not ified Ms. Sagar that she was recommending

the termination of Ms. SagarÓs employment with the School Board.

This January 2014 letter asserted that the School Board had just

cause to discipline Ms. Sagar based on the following:

On or about January 9, 2014, at Discovery

Intermediate School, you were assigned duties

as an educational support

employee/paraprofessional, and willfully

neglected your duty and committed acts of

misconduct by observing several students

commit a serious assault and battery of two

stu dents, and failing to take action to

direct the students to stop attacking the

victims and by failing to call for assistance

to stop the attacks. You are observed on

video and identified by witnesses simply

allowing the students to attack their

victims, a nd you failed to take any action on

a timely basis to call for help or direct the

aggressors to stop their attacks. These

students were under your supervision and the

attacks were both prolonged and serious.

By letter dated January 21, 2014, Melba Lucian o , the

superintendent of the School District notified Ms. Gilmore that

she was recommending the termination of Ms. GilmoreÓs employment

with the School Board. This January 2014 letter asserted that

the School Board had just cause to discipline Ms. Gilmore based

on :

On or about January 9, 2014, at Discovery

Intermediate School, you were assigned duties

as an educational support

employee/paraprofessional, and willfully

neglected your duty and committed acts of

misconduct by observing several students

commit a serious assault and battery of two

students, and failing to take action to

direct the students to stop attacking the

victims and by failing to call for assistance

to stop the attacks. You are observed on

video simply allowing the students to attack

thei r victims, and you failed to take any

action on a timely basis to call for help or

direct the aggressors to stop their attacks.

These students were under your supervision

and the attacks were both prolonged and

serious.

Both letters contained the followi ng:

By your failure to perform your duty to

promptly call for help and direct the

aggressors to stop their attacks on the

victims, you have failed to take reasonable

efforts to protect students under your

direction from conditions harmful to their

mental and physical health and safety, you

have denied the students their legal rights,

and you have exposed the students to

unnecessary embarrassment and disparagement.

Your effectiveness as an educator is

seriously impaired as a result, and by your

conduct you have caused the education

profession to be held in disrepute.

Your failure to timely take appropriate

action constitutes misconduct and willful

neglect of duty in violation of Board Rule

6.27, and Florida Administrative Code Rules

6A - 5.056(2) and (5); 6A - 10.080; 6A - 10.081,

warranting dismissal from employment.

Ms. Sagar and Ms. Gilmore, through counsel , timely requested

an administrative hearing to contest the allegations. On

February 21, 2014, both cases were forwarded to the Division for

the assignment of an a dministrative l aw j udge to conduct the

hearing. On March 6, the two cases were consolidated.

The hearing was original ly scheduled to be heard in May

2014. Based on several unopposed motions for continuances, the

hearing was rescheduled and heard on the dates listed above. The

parties stipulated that the undersigned may take judicial notice

of provisions of the Florida Statutes and Florida Administrative

Code without either being admitted into evidence, and that school

personnel may be suspended o r dismissed for just cause as defined

by Florida Administrative Code Rule 6A - 5.056.

At the final hearing, the School Board presented the

testimony of Kinisha Nixon - Rice , Eric Wells, Gregory Torregrossa,

Lare Allen, J.T., D.S., S.L., and M.S. 1/ PetitionerÓ s Exhibits 1

through 3, 6 through 11, 2/ 17, 22 through 25, 30, 33 through 36,

46, 47, 50, and 52 through 55 were admitted into evidence.

Ms. Sagar and Ms. Gilmore each testified and presented the

testimony of Rani Chowdhary, 3/ Nancy Richardson Diaz, Greg Gahris,

Tracy Diaz, Manny Losada, Diani Herber - Storer , and Damien Rosado.

Respondents Ó Exhibits 1 through 22, 4/ 24, and 25 were admitted

into evidence. Additionally , the parties provided two

stipulations during the hearing: the School District complied

with its child abuse reporting obligations; 5/ and the criminal

charges brought against Ms. Sagar and Ms. Gilmore were noll e

prosequi. 6/

At the conclusion of the hearing, Petitioner requested to

file its proposed recommended order (PRO) within 30 days of th e

filing of the transcript. No objections were voiced, and the

request was granted.

The six - volume Transcript of the hearing was filed on

April 9, 2015. On April 9, a Notice of Filing was issued

informing the parties that the Ðproposed orders . . . must be

filed with the Division on or before the close of business on

May 11.Ñ On May 4, Ms. SagarÓs counsel filed an Unopposed Motion

for Extension of Time to File Proposed Recommended Order, seeking

a two - week extension. The extension was granted, and eac h party

timely filed a PRO. Each PRO has been duly considered in the

preparation of this Recommended Order.

Unless otherwise noted, all references to Flo rida Statutes

are to 2013.

FINDING S OF FACT

1. The School Board is duly constituted and charged with

the responsibility and authority to operate, control, and

supervise the public schools within Osceola County, Florida.

Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has

the authority to discipline employees. § 1012.22(1)(f),

Fla. Stat.

2. At all times relevant to this proceeding , Ms. Sagar and

Ms. Gilmore were employed by the School District.

3. Ms. Sagar has been in the education field for years.

She attended Ðteachers collegeÑ in Trinidad and taught school

there for ten years. She was hired as a paraprofessional (para)

by the School District in 2011. Ms. Sagar was assigned to an

autistic classroom at Discovery Intermediate School (Discovery)

and later switched to an Ð intellectually disabled mild Ñ (InD

mild) classroom. She has not bee n subject to any prior

disciplinary action.

4. At the start of the 2013 - 2014 school year , Ms. Sagar was

the para assigned to the Ð intellectually disabled sever eÑ ( InD

severe ) class. The InD severe class had a teacher and two

paras, 7/ and was composed of children who were mainly confined to

wheelchairs or who needed special assistance to walk. Ms. Sagar

completed the crisis prevention intervention (CPI) class, a class

that instructs personnel on how to physically and verbally

restrain, redirect, and promp t a child who is misbehaving.

5. Ms. Gilmore became a para in exceptional student

education (ESE) in 2005. She arrived at Discovery in August

2005. Ms. Gilmore worked with students with varying educational

needs including: emotional behavior disorder ( EBD); autism; InD

mild; intellectually disabled moderate (InD moderate);

intellectually disabled profound (InD profound); and regular

educational students. 8/ Ms. Gilmore had completed the CPI

training twice before, but she was not re - certified at the star t

of the 2013 - 2014 school year. She has not been subject to any

prior disciplinary action.

6. Discovery had six self - contained ESE classrooms for the

2013 - 2014 school year. There were two autistic classrooms, one

InD mild classroom, one InD moderate cla ssroom, one InD severe

classroom , and one EBD classroom. All six classrooms are located

on the first floor of one of DiscoveryÓs buildings, in close

proximity to the office of the dean of students.

7. Student safety is of paramount concern for School

Dis trict employees. As such, every EBD classroom has a land - line

telephone and a walkie - talkie for use to request assistance, to

notify the appropriate office of a studentÓs unscheduled exit

from the classroom and to provide other information.

8 . The teleph one is primarily a school - based phone that has

its own five - digit internal extension number. 9/ In the event a

walkie - talkie is not available, a teacher or para may use the

telephone to communicate with other school personnel.

9 . The walkie - talkies are limited t o the self - contained

classrooms, guidance counselors, deans, school resource officer,

administrators, principalÓs secretary, academic coaches, athletic

coaches, and maintenance staff. The walkie - talkies are on one

channel or frequency, and when u sed, everyone who has a walkie -

talkie can hear the conversation.

10 . Discipline referrals may be written by any adult at

Discovery for any infraction in the student code of conduct. The

referral form reflects the studentÓs name, identification number,

th e classroom, s chool, grade level, date of birth, race, sex,

homeroom teacher, incident date and time, location of the

incident, the problem or explanation of the problem, the action

taken by the adult prior to the referral, the signature of the

referring a dult, and the date signed. The bottom of the referral

form was for Ðadministrative use only,Ñ and reflects what if any

action was taken. Ms. Gilmore, as the para in the EBD self -

contained classroom , authored numerous discipline referrals for

student J.G.

11. During the 2013 summer, Ms. Chowdhary was notified that

she would be re - assigned to DiscoveryÓs EBD self - contained

classroom for the 2013 - 2014 school year. Ms. Chowdhary did not

want th is assignment; however, Ms. Chowdhary contacted

Ms. Gilmore and asked if she (Ms. Gilmore) would consent to be

Ms. ChowdharyÓs para in her EBD self - contained classroom. This

request was based on their positive working relationship during

the 2012 - 2013 school year in an autistic classroom. Ms. Gilmore

agreed, the sch ool administration concurred, and Ms. Gilmore was

assigned to Ms. ChowdharyÓs EBD self - contained classroom.

12. At the beginning of the 2013 - 2014 school year there

were ten male students in Ms. ChowdharyÓs EBD self - contained

classroom. Th is classroom had a walkie - talkie and telephone.

Each student had an individual educational plan (IEP), a

different EBD, and a medical condition.

13. On the first day of school , each student was given a

welcome packet that contained an emergency contact sheet and a

healt h care report form. The parents are requested (but not

required) to complete as much of the information as they wish,

and return it to the classroom. Ms. Gilmore read the responses

ÐthoroughlyÑ regarding the medical conditions of students J.G.

and J.C . , as provided by their respective parents or guardians.

14. In early December 2013, Ms. Gilmore was re - assigned to

an InD moderate classroom as an accommodation for her pregnancy.

Ms. Chowdhary requested a male para to replace Ms. Gilmore.

Based on the su pport staff already engaged by Discovery,

Ms. Sagar was transferred to work in Ms. ChowdharyÓs self -

contained classroom. Ms. Sagar observed and worked with

Ms. Gilmore on two separate days for several hours prior to the

actual transfer in mid - December.

15. Approximately two weeks before the Christmas break, a

female student, J.T., arrived in the EBD self - contained

classroom. J.T. was taller and heavier than either Ms. Chowdhary

or Ms. Sagar. J.T.Ós language was loud and predominantly

profanity - laced. J.T. did not complete her classroom

assignments, and she did not follow the classroom rules regarding

the use of her cellphone. 10/

16. On January 9, 2014, Ms. Gilmore learned that

Ms. Chowdhary was absent from school. Ms. Gilmore volunteered to

be the substitute teacher in Ms. ChowdharyÓs classroom. 11/

17. In the early afternoon of January 9, two male students

engaged in a physical altercation (Altercation No. 1) in the EBD

self - contained classroom. J.T. took out her cellphone and

recorded Altercation N o . 1 (PetitionerÓs Exhibit 6, RespondentsÓ

Exhibit 21). That recording showed one student, J.G., standing

over and taunting another student, J.C. J.G. called J.C. a

Ðtaco.Ñ J.C. responded that J.G. should call J.C. ÐTaco Bell,Ñ

and added that J.G. was the dark meat in his taco. J.G. took

J.C.Ós remark to be a racist comment. J.C. 12/ was crumpled on the

floor behind a desk where J.G. grabbed J.C. by his warm - up jacket

collar/shirt. J.G. pulled J.C. up by the collar/shirt and pushed

J.C. into a chair at a computer cubby and small space near a

wall. J.G. kept one hand on J.C. while pinning J.C. to the small

space. J.G. continued to taunt J.C. and is heard to say:

Next comment IÓm gonna stomp on your [J.C.Ós]

heart, and I know you got a condition to

where I stomp on it, you dead, and I donÓt

give a f___. So you canÓt keep making a

racist joke.

18. Ms. Gilmore and Ms. Sagar were both present and

observed Altercation No. 1. Ms. Gilmore was sitting at the

teacherÓs desk in the front of the room when Altercation No. 1

started. When J.G. Ðdumped [J.C.] out of the chair ,Ñ [to start

the altercation], [ Ms. Gilmore ] told J.G. to Ðknock it off,Ñ and

when J.G. had J.C. on the floor, she [ Ms. Gilmore] Ðtold him to

quit.Ñ Ms. Gilmore testified that she didnÓt call for help

because ÐIt was over.Ñ Her testimony is not credible because the

recording shows that J.G. then pulled J.C. up to a standing

position, and continued to taunt him. Further, RespondentsÓ

Exhibit 16 is a discipline referral that Ms. Gilmore a uthored on

January 9, the day of the altercations. Ms. Gilmore documented

in th is discipline referral the following ÐPROBLEM Î EXPLAIN:Ñ

During Science class, 5th period, [J.G.] was

talking about how he fights and got into an

altercation with another stu dent. Words were

exchanged and [J.G.] didnÓt like what the

student [J.C.] said so he [J.G.] flipped him

[J.C.] out of his chair, kicked him [J.C.] a

couple times and threatened to kill the other

student [J.C.] by stomping on his [J.C.Ós]

heart.

19. Ms. Sagar was seated at a desk assisting another

student, J.M., when Altercation No. 1 started. Ms. Sagar did not

hear any loud shouting or threats at the beginning of Altercation

No. 1, but it escalated to the point where she was Ð alarmed .Ñ

Ms. Sagar admitt ed that she got up to leave the room, then

decided not to do so, telling herself: ÐI shouldnÓt leave the

class at this time.Ñ The reason she did not leave the classroom

was because the altercation ÐwasnÓt settled like down, down,

down. It still had like the talking and everybody, so I turned

around and came back to my seat.Ñ Ms. Sagar did not move to

intervene or call for help.

20. Neither Ms. Gilmore nor Ms. Sagar moved to intervene in

Altercation No. 1, and neither used the walkie - talkie or the

telep hone to call for assistance or to alert the administration

of the volatile situation.

21. A few minutes later another altercation (Altercation

No. 2) took place in the EBD self - contained classroom. J.T. also

recorded Altercation No. 2 (PetitionerÓs Exhib it 8) on her

cellphone. J.G. was again taunting J.C. J.G. dared J.C. to

Ðtake a swingÑ at J.G. J.C. did not swing at J.G. J.G.

proceeded to talk to the class about J.C. and other classmates.

J.C. then expressed his desire to die because his life Ðsuck s,Ñ

his father was dead, and his step - father didnÓt love him. J.C.

violently kicked/pushed a chair several feet away from himself,

began to cry, stated that heÓd be Ðhappy if you [J.G.] kill me,Ñ

violently overturned a desk, and walked out of the EBD self -

contained classroom.

22. Again, Ms. Gilmore and Ms. Sagar were present in the

EBD self - contained classroom, and observed Altercation No. 2.

During Altercation No. 2 , Ms. Gilmore was at the front of the

class at the teacherÓs desk. Ms. Gilmore confirmed that J.C.

Ðflipped a desk and walked out of class.Ñ Ms. Gilmore testified

she Ðopened the door, . . . and put myself at the doorway to get

the rest of the kids out of the class if I had to get them out.Ñ

Ms. Gilmore is briefly partially seen in the reco rding, and she

is heard asking J.C. to pick up the desk before he left the

classroom. J.C. did not pick up the desk.

23. The recording shows Ms. Sagar seated at a work table

with J.M. At one point Ms. Sagar rises from her seat, walks to a

counter with a microwave, stays at the counter for a short time,

returns to her seat, and then eats something while Altercation

No. 2 is on - going.

24. Neither Ms. Gilmore nor Ms. Sagar used the walkie -

talkie or telephone to obtain assistance or alert the

administration of the continuing volatile situation.

25. J.C. went to the d ean of s tudents (Ms. RiceÓs) office

after he walked out of the EBD self - contained classroom. Once

there, he screamed at Ms. Rice about the events that had just

taken place in his classroom. Ms . Rice observed J.C. to be

distraught and angry. Based on J.C.Ós comments, Ms. Rice

understood that a recording of the classroom events was made.

Ms. Rice requested the principal to obtain the recording.

26. B etween when J.C. left the EBD self - contained classroom

and when the principal arrived at the EBD self - contained

classroom to retrieve the recording, yet another altercation,

Altercation No. 3, occurred. J.T. started recording Altercation

No. 3 (PetitionerÓs Exhibit 10) on her cellphone. Student W. F.

held a chair over his head and threatened to throw it at another

student, D.S. The other students in the classroom can be heard

urging W.F. to throw it, but W.F. did not. J.G. can be seen

standing behind D.S., and heard to say heÓll Ðmake sure it hit[ s]

you [D.S.].Ñ When it became apparent that W.F. was not going to

throw the chair, J.T. handed her phone to W.F., who continued to

record the action, and J.T. threw the chair. J.T. testified that

she did not intend to hurt D.S., but she was not Ð play ac ting. Ñ

27. Ms. Gilmore testified she did not remember much of

Altercation No. 3. She thought she might have been writing a

referral at her desk, and did not call for help because the

altercation was over so quickly.

28. Again, Ms. Gilmore and Ms. Sagar were present in the

classroom, observed Altercation No. 3, and did nothing to radio

or call for assistance or alert the administration of the

volatile situation.

29. There is no credible evidence that any of the

altercations were pretend fights, or that t hey were staged for

the benefit of the other students. Ms. GilmoreÓs contention,

that the altercations were staged, is not credible. This EBD

self - contained classroom is a challeng ing class, one that should

be closely monitored and adequately staffed to ensure learning

can occur, and safety maintained. Respondents never attempted to

gain control of the classroom or students. They never called for

help or removed the other students from the area.

30. Petitioner has proven by a preponderance of evidence

that Petitioner has just cause to terminate the employment of

Ms. Gilmore and Ms. Sagar.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569, 120.57(1) , and 120.65, Florida Statutes.

32. The School Board is charged with the duty to operate,

control and supervise all free public schools within the School

District of Osceola County. § 1012.22, Fla. Stat.

33. The s uperintendent of the Sc hool Board has th e

authority to recommend to the School Board that an employee be

suspended or dismissed from employment. § 1012.27, Fla. Stat.

The School Board seeks to exercise its disciplinary authority to

terminate Ms. Sagar and Ms. Gilmore for Ðjust cause.Ñ

§§ 1012 .22(1)(f), and 1012.33, Fla. Stat.; Fla. Admin. Code R.

6A - 5.056; and Board R . 6.27.

34. The School Board has the burden of proving the

allegations in its Administrative Complaint by a preponderance of

the evidence. Cropsey v. Sch. Bd. of Manatee Cnty. , 19 So. 3d

351, 355 (Fla. 2d DCA 2009); McNeill v. Pinellas Cnty. Sch. Bd. ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade

Cnty. , 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

35. The preponderance of the evidence standard Ðis defined

as Òthe greater weight of the evidence,Ó BlackÓs Law Dictionary

1201 (7 th ed. 1999), or evidence that Òmore likely than notÓ

tends to prove a certain proposition.Ñ Gross v. Lyons , 763

So. 2d 276, 289 n.1 (Fla. 2000). See also Haines v. DepÓt of

Child. & Fams. , 983 So. 2d 602, 606 (Fla. 5 th DCA 2008).

36. The allegations set forth in the January 21, 2014 ,

superintendent letter s to Ms. Sagar and Ms. Gilmore are the facts

upon which this proceeding is predicated. Trevisani v. DepÓt of

Health , 908 So. 2d 1108, 110 9 (Fla. 1st DCA 2005).

37. Osceola County School Board Rule 6.27 13/ provides:

I. An effective educational program requires

the services of personnel of integrity, high

ideals, and human understanding. All

employees shall be expected to maintain and

prom ote these qualities. The Board shall

also expect all administrative, instructional

and support staff members to adhere to the

Code of Ethics of the Education Profession in

Florida and the Principles of Professional

Conduct for the Education Profession in

Florida.

II. Administrative and instructional

personnel, as defined by Florida Statute,

shall be required to complete training on

these ethical standards. All other employees

shall be encouraged to participate in

training related to professional ethics.

III. The Superintendent and School Board

members shall complete annual ethics training

as required by law.

IV. All employees shall be responsible for

reporting misconduct by School Board

employees that affects the health, safety, or

welfare of a stude nt.

38. Florida Administrative Code Rule 6A - 5.056 provides in

pertinent part:

(2) ÐMisconduct in OfficeÑ 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.; 14/

(c) A violation of the adopted school board rules;

(d) Behavior that disrupts the studentÓs learning

environment ; or

(e) Behavior that reduces the teacherÓs ability or his

or her colleaguesÓ ability to effectively perform

duties.

* * *

(5) ÐWillful neglect of dutyÑ means

intentional or reckless failure to carry out

required duties.

39. Florida Administrati ve Code Rule 6A - 10.080 provides in

pertinent part:

6A - 10.080 Code of Ethics of the Education

Profession in Florida.

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizenship. Essential to the achievement of

these standards are the freedom to learn and

to teach and the guarantee of equal

opportunity for all.

(2) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware 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 highest

degree of ethical conduct.

40. Rule 6A - 10.081 Florida Administrative Code provides in

pertinent part:

(1) The fo llowing disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation or

suspension of the individual educatorÓs

cert ificate, or the other penalties as

provided by law.

(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 hea lth and/or safety.

(b) Shall not unreasonably restrain a

student from independent action in pursuit of

learning.

(c) Shall not unreasonably deny a student

access to diverse points of view.

(d) Shall not intentionally suppress or

distort subject matter r elevant to a

studentÓs academic program.

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

d isparagement.

(f) Shall not intentionally violate or deny

a studentÓs legal rights.

(g) Shall not harass or discriminate against

any s tudent on the basis of race, color,

religion, sex, age, national or ethnic

origin, political beliefs, marital status,

handicapping condition, sexual orientation,

or social and family background and shall

make reasonable effort to assure that each

student i s protected from harassment or

discrimination.

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

dis closure serves professional purposes or is

required by law.

(4) Obligation to the public requires that

the individual:

(a) Shall take reasonable precautions to

distinguish between personal views and those

of any educational institution or

organization w ith which the individual is

affiliated.

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

(c) Shall not use institutional privileges

for personal gain or advantage.

(d) Sh all accept no gratuity, gift, or favor

that might influence professional judgment.

(e) Shall offer no gratuity, gift, or favor

to obtain special advantages.

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

(b) Shall not on the basis of race, color,

religion, sex, age, national or ethnic

origin, political beliefs, marital status,

handicapping condition if otherwise

qualified, or social and family background

deny to a col league professional benefits or

advantages or participation in any

professional organization.

(c) Shall not interfere with a colleagueÓs

exercise of political or civil rights and

responsibilities.

(d) Shall not engage in harassment or

discriminatory cond uct which unreasonably

interferes with an individualÓs performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, sh all make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

(e) Shall not make malicious or

intentionally false statements about a

colleague.

(f) Shall not use coercive means or promise

special treatment to influence professional

judgments of colleagues.

(g) Shall not misrepresent oneÓs own

professional qualifications.

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

(i) Shall not make any fraudule nt statement

or fail to disclose a material fact in oneÓs

own or anotherÓs application for a

professional position.

(j) Shall not withhold information regarding

a position from an applicant or misrepresent

an assignment or conditions of employment.

(k) S hall provide upon the request of the

certificated individual a written statement

of specific reason for recommendations that

lead to the denial of increments, significant

changes in employment, or termination of

employment.

(l) Shall not assist entry into or

continuance in the profession of any person

known to be unqualified in accordance with

these Principles of Professional Conduct for

the Education Profession in Florida and other

applicable Florida Statutes and State Board

of Education Rules.

(m) Shall self - report within forty - eight

(48) hours to appropriate authorities (as

determined by district) any arrests/charges

involving the abuse of a child or the sale

and/or possession of a controlled substance.

Such notice shall not be considered an

admission o f guilt nor shall such notice be

admissible for any purpose in any proceeding,

civil or criminal, administrative or

judicial, investigatory or adjudicatory. In

addition, shall self - report any conviction,

finding of guilt, withholding of

adjudication, comm itment to a pretrial

diversion program, or entering of a plea of

guilty or Nolo Contendre for any criminal

offense other than a minor traffic violation

within forty - eight (48) hours after the final

judgment. When handling sealed and expunged

records discl osed under this rule, school

districts shall comply with the

confidentiality provisions of Sections

943.0585(4)(c) and 943.059(4)(c), F.S.

(n) Shall report to appropriate authorities

any known allegation of a violation of the

Florida School Code or State Board of

Education Rules as defined in Section

1012.795(1), F.S.

(o) Shall seek no reprisal against any

individual who has reported any allegation of

a violation of the Florida School Code or

State Board of Education Rules as defined in

Section 1012.795(1 ), F.S.

(p) Shall comply with the conditions of an

order of the Education Practices Commission

imposing probation, imposing a fine, or

restricting the authorized scope of practice.

(q) Shall, as the supervising administrator,

cooperate with the Education Practices

Commission in monitoring the probation of a

subordinate.

41. Petitioner proved by a preponderance of the evidence

that Respondent s Sagar and Gilmore are guilty of misconduct in

office constituting just cause for dismissal.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Osceola County School

Board, enter a final order finding that just cause exists for

terminating the employment of Ms. Sagar and Ms. Gilmore .

DONE AND ENTERED this 19th day of June , 2015 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 19th day of June , 2015 .

ENDNOTE S

1/ The students who testified are all minors; in order to protect

thei r privacy, the Recommended Order refers to each minor student

by his or her i nitials .

2 / PetitionerÓs Exhibits 6 through 11 contained either video

recording of the actual students in the classroom , or transcripts

with studentsÓ names.

3/ Ms. Chowdhary was listed as a witness by all parties. In an

effort to limit her time away from her classroom

r esponsibilities, and provide an orderly hearing flow, all

parties were allow ed to elicit direct testimony from her.

4/ RespondentsÓ Exhibits 4 through 16, 18 through 20 , and 21

contained either video recording of the actual students in the

classroom , or transcripts with studentsÓ names. Additionally,

RespondentsÓ Exhibits 8 through 14 and 16 reflect that there are

two pages to each exhibit ; however, o nly one page was present

with each admitted exhibit. Exhibit 15 is cut off at the bottom

of the page. The undersigned believes it, too, is a two - page

exhibit but only one page was admitted into evidence.

5/ This was not an issue for consideration at this heari ng.

6/ This was not an issue for consideration at this hearing.

7/ The second para was only present for the beginning of the

term.

8/ O ther classification s for an ESE student are gifted or an

exceptionally gifted; however, these cases did not involve gifted

students.

9/ Multiple locations, including every classroom, are equip p ed

with a telephone. One may dial Ð9Ñ to get an outside line.

10/ The District has a Ðbring your own deviceÑ policy. Whether

students may use the device in class is a decisi on left to the

teacher. In this instance Ms. Chowdhary was unable to get J.T.

to comply with the classroom rule against the use of a cellphone.

11/ Ms. Chowdhary became ill on January 8, and the school was

unsuccessful in securing an ESE substitute teac her on short

notice. Another para, ÐCassiaÑ was originally assigned to be

Ms. ChowdharyÓs substitute on the rotation basis used by the

school. Cassia was more familiar with the InD moderate students

and had worked with them from the start of the school year.

Ms. Gilmore requested to be assigned as Ms. ChowdharyÓs

substitute teacher. Ms. GilmoreÓs request was vetted by

Principal Ramos , who deferred to Mr. Wells, the ESE coordinator,

and approved.

12/ J.C. has a medical condition that Ms. Gilmore was aware of

based on information provided at the beginning of the school

year.

13/ This rule was revised on March 4, 2014, approximately two

months after the alleged incidents. The undersigned was not

provided the version that was in effect on January 9, 2 014.

However, Exhibit 1, which was a copy of Rule 6.27, was admitted

by stipulation by all the parties, and as such, the undersigned

finds that nothing material to these particular Respondents was

affected by the revision .

14/ The Principles of Professi onal Conduct for the Education

Profession in Florida originally set forth in Florida

Administrative Code Rule 6B - 1.006 were transferred to Rule 6A -

10.081 on January 11, 2013.

COPIES FURNISHED:

Wayne L. Helsby, Esquire

Allen, Norton and Blue, P.A.

Suite 100

1477 West Fairbanks Avenue

Winter Park, Florida 32789

(eServed)

Tobe M. Lev, Esquire

Egan, Lev and Siwica, P.A.

231 East Colonial Drive

Orlando, Florida 32801

(eServed)

Roger L. Weeden, Esquire

Law Office of Roger L. Weeden

128 East Livingston Str eet

Orlando, Florida 32801

(eServed)

Marc Aaron Sugerman, Esquire

Allen, Norton and Blue, P.A.

Suite 100

1477 West Fairbanks Avenue

Winter Park, Florida 32789

(eServed)

Melba Luciano, Superintendent

Osceola County School District

817 Bill Beck Bouleva rd

Kissimmee, Florida 34744 - 4492

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart, Commissioner

Department of Education

Turling ton Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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.