14-001898TTS Broward County School Board vs. Danielle Arnold Status: Closed Recommended Order on Thursday, December 10, 2015.

Summary: School Board failed to demonstrate just cause for 10-day suspension of third-grade teacher when student left campus and walked home alone. School had no procedure to account for students when moving from one part of campus to another during school day.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 1898TTS

DANIELLE ARNOLD,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administra tive Law Judge Mary Li

Creasy for final hearing by webcast on October 5 and 6 , 201 5,

with sites in Fort Lauderdale and Tallahassee, Florida.

APPEARANCES

For Petitioner: Adrian J. Alvarez, Esquire

Eugene K. Pettis, Esquire

Haliczer, Pettis, and Schwamm, P.A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

For Respondent: Mark S. Wilensky, Esquire

Dubiner and W ilensky, LLC

1200 Corporate Center Way , Suite 200

Wellington, Florida 33414 - 8594

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend

Respondent , a teacher, for ten days without pay f or failing to

s upervise a third - grade student who left campus alone and walked

home d uring the school day .

PRELIMINARY STATEMENT

On April 15, 2015 , at its scheduled meeting, Petitioner,

Broward County School Board ( Ð School Board Ñ ) , took action to

suspend Respondent, Dani elle Arnold ( Ð Respondent Ñ ), for ten days

without pay. Respondent was advised of her right to request an

administrative hearing within 21 days. Respondent timely

requested an administrative hearing. Subsequently, the School

Board referred the matter to t he Division of Administrative

Hearings ( Ð DOAH Ñ ) to assign an Administrative Law Judge to

conduct the final hearing. T he final hearing initially was set

for June 18 and 19, 2014 . After multiple continuances , granted

at the requests of the parties, the cas e was set for hearing on

October 5 and 6 , 2015.

T he School Board charged Respondent with misconduct in

office and willful neglect of duty for failing to supervise a

student who left campus during school hours undetected. At t he

final hearing , t he School B oard presented the testimony of the

foll o wing: D avida Shacter (ÐShacterÑ) , Principal of North

Andrews Garden s Elementary School (NAGE); Susan Copper, Employee

and Labor Relations Department employee; Mark Narkier, Cadre

D irector for the School Board; C . C . , mother of student C.S. ; and

the deposit i on testimony of Dr. Desmond Blackburn, former Chief

of School Performance and Accountability for the School Board .

School Board Exhibits 1, 4(a) and (b), 5, 6, 9, 12, 14, 15, 18,

and 19 were received into evidence upon stipulation of the

parties.

Respondent testified on her own behalf and presented the

additi onal testimony of the following: Lisa Engle, teacher at

NAGE; Deanna Pellet ier (ÐPelletierÑ) , teacher at NAGE ; and the

deposition testimony of Elizabeth Rae ihle, former teacher at

NAGE . Respondent did not offer any exhibits into evidence.

The two - volum e final hearing Transcript was filed on

N ovember 2 , 2015 . The parties timely filed proposed recommended

orders, which were given consideration in the preparat ion of this

Recommended Order. Unless otherwise indicated, all rule and

statutory references are to the versions in effect at the time of

the alleged violations.

FINDING S OF FACT

1. The School Board is a duly - constituted school board

charged with the dut y to operate, control, and supervise the

public schools within Broward County, Florida.

2. At all times material to this case, Respondent was

employed by the School Board as a third - grade teacher at NAGE , a

public school in Broward County, Florida. Respo ndent has taught

fo r the School Board for 15 years without receipt of any prior

discipline .

3. The proposed discipline is based upon conduct occurring

on Thurs day, March 4, 2014 . Du ring the 2013 - 2014 school year,

Respondent co - taught a third - grade class with Pelletier.

Respondent and Pelletier had adjoining classrooms. Eac h was

assigned approximately 18 students. Respondent taught English

and social studies , and Pelletier taught math and science.

Their classes switch ed in the afternoon.

4. At approxi mately 11:45 a.m. on March 4, 2014, Respondent

told her students to clean their desks and line - up for lunch.

The students lined up and Respondent opened and stood at the

door. The students moved into the hallway in a line where they

were instructed to st op. Respondent checked the classroom to see

if any students were left behind and saw three students (two

girls and a boy, C.S.) completing a social studies test .

Respondent instructed the students to finish up and join their

classmates in line.

5. A stu dent who was holding the door with Respondent asked

to go back in the classroom to get a tissue. While Respondent

waited for the remaining students to exit the classroom, the line

began to move down the hall toward the stairs to the right of the

classroom door. Respondent told the students in line to wait.

When she looked back into the classroom, Respondent saw one

female student remaining. When that student exited the room,

Respondent assumed that all students had gotten in line.

Respondent walked her class down the hall on the second floor,

down the stairs, and waited at the stairs to watch her students

enter the cafeteria for lunch.

6. Unbeknownst to Respondent , C.S. remained in the

classroom bathroom and did not exit the classroom with his

classmat es to go to lunch .

7. Respondent ' s usual habit was to walk her students all

the way to the cafeteria doors; however , on this day , she only

walked them to the bottom of the stairs where she had an

unobstructed view as she watched them enter the cafeteria.

Respondent then went to the main office to pick up some printouts

from the office printer. Respondent then returned to the

cafeteria to pick up a few of her students who were coming back

with her to the classroom to enjoy Ð lunch bunch Ñ as a reward for

go od behavior .

8. After lunch, Respondent and/or Pelletier returned to the

cafeteria to pick up the students and take them to their

designated Ð specials Ñ classes. Respondent was unaware that C.S.

was missing.

9 . After Respondent initially left the classro om , but

before she returned with the Ð lunch bunch , Ñ C.S. left the

classroom, surreptitiously went down the stairs, ducked under the

cameras near the front office, and exited the school property

through the car circle. C.S. proceeded to walk 14 blocks home ,

past a construction site , and near an extremely busy road, and

entered the house where he was discovered by his grandmother at

approximately 12:20 p.m . C.S. was unharmed on his walk home.

10 . C.S. ' s grandmother contacted C.S. ' s mom, C.C. , at work

and t old her that her son was at the house instead of at school.

After going home and checking on C.S. ' s safety, C.C. immediately

drove to NAGE and asked Shacter if she knew where her son was

located. C.C. also checked the sign - out log to see if anyone

signed her son out. C.C. informed Shacter that C.S. was at home,

had climbed through a window to get inside, and had his backpack

with him. C.C. was understandably angry and upset.

11 . Shac ter called Respondent ' s classroom but no one was

there. Next, s he cal le d Guidance C ounselor Lamar to stay with

C.C. while she went to find Respondent . When Shacter went to

Respondent ' s classroom, she found Respondent , Pelletier , and

Pelletier ' s intern. Shacter asked about C.S. , and Respondent

said that she took him to the cafeteria for lunch. S hacter

directed Respondent to look for the backpack. Respondent went to

C.S. ' s desk and was surprised that his backpack was gone.

1 2 . S h a cter took Respondent to meet with C.C. Respondent

also told C.C. that she had taken C.S. to the cafeteria. B ecause

C.C. was so upset, S ha cter separated Respondent from C.C.

S h a cter requested to interview C.S. at home or at school , but

C.C. refused. Sha cter asked that Lamar go to the house , which

would be less threatening for the child , and C.C . allowed Lamar

to go to her home and speak with C.S.

13 . C.S. reported that he was in the class bathroom just

prior to lunch. When he came out of the bathroom, his class was

gone. He had a stomach ache so he decided to go home.

14 . Video from the scho ol ' s security camera system show s

C.S. leaving the classroom after his class departed for lunch.

The video also shows C.S. took several evasive actions to avoid

detection, including ducking behind a trashcan and hugging the

walls and ducking below the win dows to exit without being caught.

15. The classroom teacher is primar il y responsible to

account for , and supervise , her assigned students while they are

at school. At the time of the incident, the S chool B oard and

NAGE had no policy, procedure , or proto col for assuring that all

students remained within the supervision of their teachers at all

times. Prior to this incident, the method of account ing for

students throughout the day, particularly when moving from one

part of the campus to another , was left to the discretion of each

individual teacher by NAGE .

16. As a result of the investigation that followed this

incident , the School Board voted to suspend Respondent with pay

for ten days.

Findings of Ultimate Fact

17 . As discussed in greater detail bel ow, the School Board

failed to demonstrate by a preponderance of the evidence that the

Respondent engaged in misconduct in office or willful neglect of

duty .

CONCLUSIONS OF LAW

18 . Respondent is an instructional employee, as that term

is defined in sectio n 1012.01(2), Florida Statutes (2013).

The School Board has the authority to suspend instructional

employees pursuant to sections 1012.22(1)(f), 1012.33(4)(c), and

1012.33(6)(a).

19 . To do so, the School Board must prove, by a

preponderance of the evide nce, that Respondent committed the

violations alleged in the Administrative Complaint, and that such

violations constitute " just cause " for suspension.

§§ 1012.33(1)(a) and (6), Fla. Stat.; Mitchell v. Sch. Bd. , 972

So. 2d 900, 901 (Fla. 3d DCA 2007); Gab riele v. Sch. Bd. of

Manatee Cnty. , 114 So. 3d 477, 480 (Fla. 2d DCA 2013).

20 . The preponderance of the evidence standard requires

proof by " the greater weight of the evidence " or evidence that

" more likely than not " tends to prove a certain proposition .

Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000).

The preponderance of the evidence standard is less stringent than

the standard of clear and convincing evidence applicable to loss

of a license or certification. Cisneros v. Sch. Bd. of Miami -

Dade C nty. , 990 So. 2d 1179 (Fla. 3d DCA 2008).

21 . Whether Respondent committed the charged offenses is a

question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor , 667 So. 2d

11 387, 389 (Fla. 1st DCA 1995); McMillian v. Nassau Cnty. Sch.

Bd. , 629 So. 2d 226, 228 (Fla. 1st DCA 1993).

22 . Sections 1012.33(1)(a) and (6) provide in pertinent

part that instructional staff may be suspended dur ing the term of

their employment contract only for Ð just cause. Ñ Ð Just cause Ñ is

defined in section 1012.33(1)(a) to include Ð misconduct in

office Ñ and Ð willful neglect of duty . Ñ

23 . Section 1001.02(1), Florida Statutes, grants the State

Board of Educati on authority to adopt rules pursuant to

sections 120.536(1) and 120.54 to implement provisions of law

conferring duties upon it.

24 . Consistent with this rulemaking authority, the State

Board of Education has defined Ð misconduct in office Ñ in Florida

Ad ministrative Code R ule 6A - 5.056(2), effective July 8, 2012,

which provides:

(2) Ð Misconduct in Office Ñ 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.

2 5 . Rule 6A - 10.080 en titled Ð Code of Ethics of the

Education Profession in Florida Ñ (formerly numbered as

r ule 6B - 1.001) provides:

(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 standard s 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

stri ve 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.

2 6 . While rule 6A - 5.056(2)(a) provides that violation of

the Code of Ethics rule constitutes Ð misconduct, Ñ it has been

frequently noted that the precepts set forth i n the above - cited

Ð Code of Ethics Ñ are Ð so general and so obviously aspirational as

to be of little practical use in defining normative behavior. Ñ

Walton Cnty. Sch. Bd. v. Hurley , Case No. 14 - 0429 (Fla. DOAH

May 14, 2014); Miami - Dade Cnty. Sch. Bd. v. And erson , Case

No. 13 - 2 414 (Fla. DOAH Jan. 14, 2014).

2 7 . Rule 6A - 5.056(2)(b) incorporates by reference rule

6A - 10.081, which is titled: Ð Principles of Professional Conduct

for the Education Profession in Florida. Ñ Rule 6A - 10.081

(formerly rule 6B - 1 .006) provides, in pertinent part:

(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 saf ety.

2 8 . Consistent with its rulemaking authority, the State

Board of Education has defined Ð willful neglect of duty Ñ in

rule 6A - 5 .056(5) to mean Ð intentional or reckless failur e to

carry out required duties.Ñ

29. While the parents and Scho ol Board are justif i ably

concerned that C.S' s undetected departure from school could have

resulted in him being lost, kidnapped, hit by a car , or otherwise

harmed, the i ncident is not an automatic or Ðper seÑ violation of

the Code of Ethics or Principle of the Profession.

30 . Respondent made a reasonable effort to protect C . S . and

other students from conditions harmful to learning and/ or to the

student's mental and/or physical health and/or safety.

Respondent directed all students to line - up for lun ch.

She checked the classroom twice to make sure the students were in

the line. It was reasonable, when she saw the classroom empty,

to presume that the students had , in fact , lined up as directed .

It was unreasonable for her to assume a student was in the

bathroom when the classroom procedure was to require students to

wait until they arrived at the cafeteria if they needed to use

the bathroom immediately prior to lunch.

3 1 . Although in hindsight, it certainly would have been

preferable for R espo ndent to have conducted a headcount upon

exiting her classroom and arriving at the cafeteria , this would

have been wholly inconsistent with the then existing practices at

NAGE.

32 . The credible testimony of all witnesses from NAGE was

that no procedu re or protocol was required or suggested for

keeping track of students when moving from one campus location to

another, by the School B oard or NAGE administration prior to this

incident. 1 / Accordingly, double - checking the classroom prior to

departure and observing students arrive at the cafeteria w as,

under these circumstances, Ðreasonable.Ñ

33 . Whether C . S . hid in the classroom bathroom , or

unintentionally remained behind, is not pertinent to the

determination in this case. In light of the lack of direction

from administration on how to account for students, it was

unreasonable for Respondent to check the bathroom, under the

desks, in a closet, or elsewhere, to determine if a child was

hiding or left behind.

34 . T he School Board failed to demo nstrate by preponderance

of the evidence that Respondent engaged in misconduct in office

or willful neglect of duty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

finding that no Ðjust causeÑ exists to discipline Respondent.

DONE AND ENTERED this 10th day of December , 2015 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge

Division of Administrative He arings

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 10th day of December , 2015 .

ENDNOT E

1 / Three days after this incident, Shacter called a meeting of

all teacher s and issued directive s requiring, among other things,

taking attendance when moving students from one location to

another on campus, checking restrooms before leaving the

classr oom , and having teacher s stand at the middle or back of a

li n e to b etter observe students. Had these procedures been in

place on March 4, 2014, it is likely this incident would not have

occurred. However, the fact that these procedures were easily

implem ented does not mean that Respondent was guilty of willful

neglect on the date in question.

COPIES FURNISHED:

Eugene K. Pettis, Esquire

Haliczer, Pettis, and Schwamm, P. A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Fl orida 33394

(eServed)

Mark S. Wilensky, Esquire

Dubiner and Wilensky, LLC

Suite 200

1200 Corporate Center Way

Wellington, Florida 33414 - 8594

(eServed)

Adrian J. Alvarez, Esquire

Haliczer, Pettis, and Schwamm, P.A.

One Financial Plaza, Seventh Floor

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

Robert Runcie, Superintendent

Broward County School Board

600 Southeast Third Avenue , Floor 10

Fort Lauderdale, Florida 33301 - 3125

(eServed)

Pam Stewart , Commissioner of Education

Department of E ducation

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eSer ved)

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.