14-002339TTS Sarasota County School Board vs. Douglas S. O'Connell Status: Closed Recommended Order on Monday, December 22, 2014.

Summary: Petitioner had just cause to terminate Respondent's employment based on REspondent's inability to maintain a professional learning environment (inappropriate photos displayed and communications with students).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 2339TTS

DOUGLAS S. O'CONNELL,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a fina l hearing in this cause was held

October 6 through 9, 2014, in Sarasota, Florida, before

Administrative Law Judge Lynne A. Quimby - Pennock of the Division

of Administrative Hearings (Division).

APPEARANCES

For Petitioner: Robert K. Robinson, Esquire

Kirk Pinkerton

6th Floor

240 South Pineapple Avenue

Sarasota, Florida 34236

For Respondent: Douglas S. O'Connell, pro se

7141 Jarvis Road

Sarasota, Florida 34241

STATEMENT OF THE ISSUE

Whether just cause exists to terminate Respondent from his

employment with the Sarasota County School Board.

PRELIMINARY STATEMENT

By correspondence dated May 1, 2014, the Sarasota County

School Board Superintendent , Lori M. White , informed Respondent,

Douglas OÓConnell, that a recommendation seeking the termination

of his employment would be submitted to the Sarasota County

School Board (Petitioner or School Board) for appropriate action.

In re sponse to the May 1 correspondence, Respondent timely

requested that his case be Ðheard by the Florida Division of

Administrative Hearings.Ñ By correspondence dated May 16, the

matter was forwarded to the Division for a disputed fact hearing.

The final h earing was initially set for August 28 and 29, 2014.

On August 13, Petitioner filed an unopposed Motion to Continue

the Final Hearing and requested four days for the hearing,

instead of the original two days requested. The motion was

granted and the caus e was rescheduled for final hearing on

October 6 through 9.

At the final hearing, Petitioner called Al Harayda, Edwina

Oliver, Rachel Shelly, Brad Porinchak, Respondent, Tara Lara,

D.D., S.N., K. S ., J.W., A.G., and D.G. to testify. 1/ Respondent

testified on his own behalf and called Darby Larkin, Carlos

Hernandez, Ana Espina, Edgar Vasquez, Michele Bluestone, Gail

Foreman, Lillian Migano, Betty Hamilton, Rachel Shelley, Ernie

Daigle, Lori White, Trisha Allen, Barry Dubin, Al Harayda, Edwina

Oliver , and the students listed above to testify on his behalf. 2/

Petitioner's Exhibits 1 through 54, 3/ and 57 and 58 4/ were admitted

into evidence. RespondentÓs Exhibits 4, 5, 7 , 5/ 8, and 10 were

admitted into evidence.

At the conclusion of the hearing, PetitionerÓs c ounsel

requested additional time in which to file proposed recommended

orders (PROs) . Respondent did not oppose the request.

The seven - volume Transcript of the proceeding was filed with

the Division on October 28, 2014. On October 28, a Post - hearing

Orde r was issued wherein the parties were notified that the

Transcript had been filed and their respective PROs were to be

filed before 5:00 p.m. on November 25. The parties timely

submitted their PROs. To the extent that RespondentÓs PRO

contained new testi mony or evidence, not subject to cross -

examination, that information has not been considered.

Otherwise, both PROs have been considered in the preparation of

this R ecommended O rder.

Unless otherwise noted, all references to Florida Statutes

shall be the 2 014 edition.

FINDING S OF FACT

1. Petitioner is the entity charged with the duty to

operate, control, and supervise the public schools within

Sarasota County, Florida.

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

employed by the Sarasota Board a s a teacher. Respondent is

certified to teach biological sciences grade 6 through 12.

Respondent is not certified to teach reproductive health or

h ealth o pportunities through p hysical e ducation classes.

Respondent was reassigned to the Landings, 6/ the S chool BoardÓs

administrative offices during the course of the investigation.

3. On May 1, 2014, Superintendent White executed a letter

to Respondent which provided in part:

It has been reported to me by Dr. Rachel

Shelley, Principal of Booker High School,

that you have been insubordinate by not

maintaining a professional learning

environment with your students. It is

reported that progressive discipline has

occurred; however, these interventions have

not been successful.

You have grieved the initial prop osed

termination set for March 19, 2014 and on

April 29, 2014; you were notified that this

grievance was denied. Accordingly, I will

recommend to the School board that it

terminate your employment effective May 21,

2014. The School Board will vote to acc ept

or reject my recommendation at its May 20,

2014 meeting. The meeting will be held at

1980 Landings Boulevard, Sarasota, Florida at

3:00 p.m.

Background :

4. Respondent was hired to teach integrated science to

ninth - grade students at Booker High Schoo l (Booker) beginning in

the 2001 - 2002 school year. Respondent taught at Booker for three

years under Principal Jan Gibbs.

5. At the beginning of the 2004 - 2005 school year ,

Respondent became the dean of a newly created middle school

called Student Leaders hip Academy (SLA). Respondent worked at

SLA for a year and a half. In the spring of 2006, Respondent

transferred to and taught honors biology at Riverview High

School.

6. Respondent returned to Booker for the 2006 - 2007 school

year under Principal Jill D orsett. During the 2008 spring break ,

Principal Dorsett was reassigned to the Landings, and Constance

White - Davis became BookerÓs principal. Principal White - Davis

served Booker for several years.

7. During the 2008 - 2009 school year, Assistant Principal

(AP) Edwina Oliver served as a teacher evaluator of Respondent.

In April 2009, AP Oliver discussed with Respondent certain

guidelines and expectations for teaching at Booker. AP Oliver

reduced her comments to a memorandum of instruction (memo) to

Respon dent. This memo was not considered as discipline, but

rather a reminder to Respondent of the guidelines and

expectations for Booker teachers. The reminders included:

responsibilities of assigned students according to Smartweb; 7/

effective use of instruc tional time; 8/ and consistent enforcement

of policies related to studentÓs expectations. 9/

8. In March 2010, AP Oliver issued a verbal reprimand to

Respondent regarding his involvement in a Facebook exchange with

a female student. During the Weingarten h earing , 10/ Respondent

admitted that R.P. was a student in his classroom, and it

probably wasnÓt the best idea that he responded to a female

studentÓs Facebook posting by providing his cell phone number.

Respondent was evasive in answering questions at the hearing

regarding this incident ; yet, he asserted that neither he nor

R.P. contacted one another after Respondent supplied his cell

number.

Principal Rachel ShellyÓs Tenure :

9. When Ms. Shelley began her tenure as BookerÓs principal ,

she devoted her firs t year to listening, watching , and meeting

with administrators, lead teachers, teachers, parents , and

community members. Principal Shelley found Respondent to be

jovial, social, highly intelligent (in that he knew his

curriculum), and very popular among t he students. At some point

AP Oliver shared with Principal Shelley her concerns regarding

Respondent and his teaching style. AP Oliver was concerned that

Respondent showed a lot of videos in his classroom, that he

allowed students to come and go at will, and that he lacked high

expectations for his students.

10. Principal Shelley maintains high expectations for all

Booker students and teachers. In order for Booker students to

achieve their highest potential, Principal Shelley needs highly

effective teac hers who will Ðset and consistently maintain high

expectation[s].Ñ Booker (as all public schools in Florida) is

mandated to teach to the Florida Education Accomplished Practice

(FEAP) standards. FEAP requires that teachers must know how to

do certain thi ngs and be able to teach those things to students.

In order to meet these high standards, Principal Shelley tries to

hire highly effective teachers in order for her students to

advance .

11. In April 2013, Respondent was placed on administrative

leave whi le the school district conducted an investigation into

an alleged battery of a student. A female student came forward

and alleged that while she was alone in a classroom/preparation

room grading papers for Respondent, Respondent brushed by her and

grabbed her butt. The student reported the incident to Principal

Shelley , who immediately instituted the district protocol by

remov ing Respondent from the classroom environment. Respondent

was instructed to wait for further instructions from Principal

Shelley. Principal Shelley notified law enforcement via the

Booker school resource officer, and a criminal investigation was

conducted. For the remainder of the 2012 - 13 school year,

Respondent worked at the Landings.

12. Upon completion of the d istrictÓs investi gation , it was

determined that Respondent had violated two school policies:

allowing a student to grade other studentsÓ papers; and allowing

a student to be alone in a classroom/preparation room.

Respondent was suspended from the classroom for five days w ithout

pay. He served the suspension between October 16 and October 22,

2013.

13. In late September 2013, the criminal charges against

Respondent were dropped, and he was allowed to return to the

classroom with specific expectations regarding his classro om

teaching and management style. One specific instruction given to

Respondent was that he was not to allow unassigned students in

his classroom.

14. The evidence clearly demonstrated that Respondent

allowed a male student, K.C., who was not assigned to Respondent,

to enter RespondentÓs classroom during RespondentÓs

lunch/planning period. K.C. remained in RespondentÓs classroom

approximately 10 - 15 minutes. Respondent did not ask K.C. for a

hall pass. Principal Shelley gave Respondent a verbal warning

r egarding his misrepresentation of the facts surrounding K.C.Ós

classroom visit.

15. In November 2013, Principal Shelley conducted a walk -

through of RespondentÓs classroom. While there , Principal

Shelley noted that RespondentÓs lesson plans were not compl eted

or available for viewing, and that students were eating in the

classroom. Respondent was advised of these issues.

16. In December 2013, Principal Shelley conducted a

Weingarten hearing regarding the number of labs that Respondent

was conducting in h is classes. Principal Shelley directed

Respondent to implement hands - on labs as required by the physical

science curriculum, as she found that Respondent was not

conduct ing the requisite number of labs.

17. In January 2014, during RespondentÓs marine sci ence

class, Respondent showed human pictures of male and female

genitalia infected with the h uman p apillomavirus (HPV).

Respondent thought it was a Ðteachable momentÑ for juniors and

seniors in high school. He continued to state something to the

effect t hat if the students werenÓt going to abstain from sex,

they should use Ðcondom sense.Ñ Respondent admitted it was Ða

huge lapse in judgment,Ñ Ðit was not in any way related to marine

scienceÑ and he was Ðdeeply sorry if [he] offended any student or

parent .Ñ

18. Respondent admitted that he engaged in a conversation

with students regarding ÐBJÓs and Costco.Ñ 11/ One student, K.S.

(also known as K.L.R.S.), credibly testified that Respondent

engaged in a conversation with students acknowledging that he

(Respo ndent) liked Hispanic girls. K.S. was also distressed when

Respondent winked at her following a comment about Respondent

liking curly - haired Hispanics. Additionally , Respondent admitted

to making sexually charged statements about his wife and/or his

pref erence for Latin women. Even if those statements were taken

out of context, Respondent should not have engaged in these

conversations with students.

19. A female student was offended by RespondentÓs actions

and reported them to a teacher, who in turn enc ouraged the

student to report them to Principal Shelley. Once Principal

Shelley heard the allegations, she immediately implemented the

d istrict protocol and relieved Respondent of his teaching

responsibilities. After the d istrict conducted another

invest igation, Superintendent White issued the termination letter

to Respondent.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

21. T he s uperintendent of the School Board has the

authority to recommend to the School Board that an employee be

terminated from employment. §§ 1001.32(3) and 1012.27(5),

Fla. Stat.

22. Petitioner is responsible for the operation, control,

and supervision of the free public schools in Sarasota County,

Florida. Art. IX, § 4(b), Fla. Const.; and § 1001.32(2), Fla.

Stat. Petitioner has the authority to terminate the employment

of a teacher. See § 1012.22(1)(f) , Fla. Stat.

23. Petitioner bears the burden of pr oving by a

preponderance of the evidence that Ðjust causeÑ exists to

terminate Respondent's employment . 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 (Fla. 3d DCA 1990).

Prepon derance of the evidence is evidence that Ðmore likely than

notÑ tends to prove a proposition. Gross v. Lyons , 763 So. 2d

276 (Fla. 2000).

24. Respondent is considered an edu cational employee.

§ 1012.01( 2 ) , Fla. Stat .

25. ÐJust causeÑ is the standard o f discipline applied to

actions involving instructional personnel. Just cause is defined

in section 1012.33 (1) in pertinent part as:

All such contracts, except continuing

contracts as specified in subsection (4),

shall contain provisions for dismissal dur ing

the term of the contract only for just cause.

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office, incompetency, two

consecutive annual performance evaluation

ratings of unsatisfactory under s. 1012.34,

two annual performance evaluation ratings of

unsatisfactory within a 3 - year period under

s. 1012.34, three consecutive annual

performance evaluation ratings of needs

improvement or a combination of nee ds

improvement and unsatisfactory under s.

1012.34, gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude.

26. Furth er, section 1012.33(6) provides in pertinent part:

Any member of the instructional staff,

excluding an employee specified in subsection

(4), may be suspended or dismissed at any

time during the term of the contract for just

cause as provided in paragraph ( 1)(a). The

district school board must notify the

employee in writing whenever charges are made

against the employee and may suspend such

person without pay; but, if the charges are

not sustained, the employee shall be

immediately reinstated, and his or he r back

salary shall be paid.

27. Florida Administrative Code Rule 6A - 5.056(4) provides

the following definition for Ðgross insubordinationÑ:

the intentional refusal to obey a direct

order, reasonable in nature, and given by and

with proper authority; mi sfeasance, or

malfeasance as to involve failure in the

performance of the required duties.

28 . Malfeasance is defined as misconduct or wrongdoing;

especially, by a public official. Misfeasance is defined as the

improper and unlawful execution of some ac t that in itself is

lawful and proper. Merriam - Webster Am . Heritage Dictionary of

the English Language (5th ed. 2014) .

29. Respondent admitted the salient facts of this case .

Respondent engaged in inappropriate communications with students

(via social me dia and during class time), allowed a student to

grade other studentsÓ papers, allowed students to eat in his

classroom, allowed students to enter his room without proper

authorization, and showed an inappropriate slide of male and

female genitalia infecte d with the HPV virus to a class of

students without proper authorization or parental permission.

Petitioner satisfied its burden and proved by a preponderance of

the evidence that Respondent did not maintain a professional

learning environment for his stud ents.

30. Having considered all of the facts set forth above , the

undersigned concludes that termination of employment is

appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner termina te Respondent's

employment as a classroom teacher for Sarasota County School

Board.

DONE AND ENTERED this 2 2nd day of December , 2014 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judg e

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 2 2n d day o f December , 2014 .

ENDNOTE S

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

their privacy, the Recommended Order refers to each minor student

by his or her initials.

2/ Both parties listed some of the same witnesses. To provide an

or derly hearing flow and allow each party the opportunity to

elicit the direct testimony of each witness, the undersigned

allowed cross examination to go beyond the direct examination.

3/ Exhibit 3 appears to be a draft verbal reprimand as it is

dated Marc h 24, 2010, yet the body of the memo contains the

following: ÐOn March 18, 2009 we met for a Weingarten . . . . Ñ

Neither party objected to or pointed out this date discrepancy.

Exhibits 7 and 46 were admitted over objection by Respondent.

4/ Petitione rÓs Exhibit 58 was originally produced as

RespondentÓs Exhibit 11, an April 11, 2014, psychological

evaluation of Respondent. However , the evaluation contained

several redacted statements. Respondent was directed to produce

an unredacted copy of the eval uation on or before October 20,

2014, for inclusion in the record of this proceeding. The

unredacted copy was filed on October 21, 2014. Both parties are

reminded of the privacy requirements regarding private health

information.

5/ Exhibit 7 was admitt ed over objection.

6/ The Landings is a complex of four buildings that comprise the

main offices of the Sarasota County School Board.

7/ This means that teachers are to have only those students

assigned to their classroom; and that teachers are not to allow

students from other classes into a classroom without permission.

8/ This means instructional teaching from bell to bell, and in

the event the lesson is completed, continue using instructional

time for remediation or enrichment opportunities.

9/ I n its former building, Booker had a Ðmajor problemÑ with

rats, bugs and insects. When Booker moved into its new facility,

a prior administrator (not Principal Shelley) established a rule

of ÐNo eating in the class.Ñ Respondent did not enforce that

rule. Additionally, there was a rule of Ð n o technology in the

classroom , Ñ which Respondent did not enforce. The Ð n o technology

in the classroomÑ rule was later revised.

10/ A Weingarten hearing is conducted as a fact - finding meeting

where an employee is asked to attend and answer questions about

whatever situation is being investigated. The employee may

appear with or without representation. Based on the facts

obtained during a Weingarten hearing and the investigation, a

determination is made whether any dis ciplinary action is

necessary.

11/ The reference to ÐBJÑ is a blow - job. There was no sexually

charged reference provided for ÐCostcoÑ during the hearing.

COPIES FURNISHED:

Douglas S. O'Connell

7141 Jarvis Road

Sarasota, Florida 34241

Robert K. Robi nson, Esquire

Kirk Pinkerton

6th Floor

240 South Pineapple Avenue

Sarasota, Florida 34236

(eServed)

Lori White, Superintendent

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231 - 3365

(eServed)

Pam Stewart, Commissioner

Depart ment of Education

Turlington Building, Suite 1 514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Lois S. Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

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

w ill issue the Final Order in this case.