14-004993TTS Polk County School Board vs. Kathy Bunch Status: Closed Recommended Order on Friday, April 3, 2015.

Summary: Respondent violated standards by initating and facilitating the change of student grades.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 4993TTS

KATHY BUNCH,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a hearing was condu cted in this case

before J. D. Parrish, an Administrative Law Judge of the Division

of Administrative Hearings, on January 22, 2015, in Bartow,

Florida.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell and Dunlap , LLP

245 South Central Avenue

Bartow, Florida 3383 0

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P. A.

29605 U.S. Highway 19 , North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether there is just cause to terminate RespondentÓs

employment with the school district.

PRELIMINARY STATEMENT

Petitioner, Polk County School Board (Petitioner or Board),

through its Superintende nt of Schools , gave notice to Kathy Bunch

(Respondent) of its intent to terminate her employment with the

school district on or about September 23, 2014. The notice to

Respondent was dated August 15, 2014. Thereafter, counsel for

Respondent request ed a f ormal administrative hearing to challenge

the termination. The matter was filed with the Division of

Administrative Hearings (DOAH) on October 22, 2014.

In accordance with the partiesÓ Joint Response to Initial

Order , the case was scheduled for hearing on January 22, 2015.

At the hearing , Petitioner presented the testimony of

Angela Allen and Patricia Butler , and its exhibits numbered 1 - 8

were admitted into evidence. The deposition testimony of Sue

Helen Allemang was received . Respondent testified on her own

behalf and offered testimony from Cassandra Gibson, Cathryn

Goble, Olin Gee and Lisa Andrews . At the conclusion of the

hearing , the parties requested 15 days leave from the filing of

the hearing transcript within which to file proposed orders.

T hat request was granted and both timely filed Proposed

Recommended Orders have been considered in the preparation of

this Recommended O rder. The T ranscript of the proceeding was

filed on February 9, 2015.

FINDING S OF FACT

1. At all times material to thi s case , Respondent was

employed pursuant to a professional services contract as an

Exceptional Student Education (ESE) consult ant at Haines City

High School (HCHS). In her 20 years at HCHS , Respondent has also

served as an ESE teacher, an English teacher, and a R eading

teacher. Prior to this case , Respondent has not been

disciplined.

2. During the 2013 - 2014 school year , Respondent was

assigned to a small office that she shared with the HCHS football

coach, Ron Johnson, and another ESE teacher, Selma Ga ndy.

3. In January 2014 , a mathematics teacher, Sue Allemang,

retired and moved to Virginia. Ms. Allemang and Respondent knew

one another , and Respondent had Ms. AllemangÓs telephone number.

4. When s pring football started that year , Coach Johnson

as ked Respondent to telephone Ms. Allemang to see if the

mathematics teacher would agree to change a studentÓs grade that

had been given in the f all term. According to Ms. Allemang ,

Respondent telephoned her and asked if the grade could be changed

(presumab ly to improve the studentÓs grade point average). After

a brief conversation, Ms. Allemang agreed that the studentÓs

grade could be improved. Ms. AllemangÓs agreement to raise the

grade extended to one student.

5. Thereafter, Respondent completed a gra de change form

for the student, indicated that Ms. Allemang had authorized the

change, and signed the form before delivering it to Angela Allen,

the terminal operator at HCHS, who was responsible for inputting

data into the HCHS system.

6. Although Ms. Allemang recalled authorizing changing a

grade for one student, Respondent executed two forms for two of

Ms. AllemangÓs students so that grades could be improved.

7. Between January 13 and May 7, 2014, Respondent delivered

15 grade change forms for studen ts who were on the football team.

In almost every instance the changes increased the studentsÓ

grades and would have thereby increased their grade point

averages.

8. Respondent did not feel that she had done anything wrong

in delivering the grade chang e forms. She maintained that she

was simply a messenger delivering forms as a courtesy to others

because she was going to the office. Such testimony has not been

deemed credible or persuasive. Respondent knew or should have

known that , absent her conduc t , the grades would not have been

changed at the times they were.

9. In fact, Respondent was the facilitator of the grade

change for Ms. AllemangÓs student because had she not initiated

the telephone conversation there would have been no basis for the

c hange. As it was, Respondent knew or should have known that the

student whose grade was changed had done no additional work to

merit the change as Ms. Allemang no longer taught at the school.

Further, Respondent did not represent to Ms. Allemang that

add itional work (supervised by Respondent or another teacher)

would support the grade change.

10. Other teachers who have approved grade changes have

done so based upon additional work required of the student. In

this case , two of Ms. AllemangÓs students di d not perform

additional work to support the grade changes. Moreover,

Ms. Allemang only authorized the change for one student. The

record established that Respondent completed grade change forms

for two of Ms. AllemangÓs students.

11. Another teacher n o longer employed at HCHS authorized a

grade change for one of the football players. When Ms. Allen

questioned Respondent about that change, Respondent claimed that

Coach Johnson had obtained the signature from the former teacher

to support the change. W hether additional work was required to

support the grade change is unknown.

12. During a normal school year , Ms. Allen processes grade

change forms for approximately six students. In this case ,

Respondent submitted 15 grade change forms to Ms. Allen.

13. One of the physical education teachers at HCHS was

asked to change grades for athletes. Coach Johnson gave the

teacher a list of the athletes needing improved grades. Before

the teacher would agree to the changes , the students were

required to comp lete extra work. Some ran laps or did other

physical activities for extra credit. Some wrote essays or did

other academic work. The teacher did not change the grades

absent extra credit work done by the students.

14. There was not an ongoing Ðculture of grade changingÑ at

HCHS. Coach Johnson sought grade changes presumably to allow

football players to be eligible to participate. Respondent

assisted in obtaining the grade changes and should have known

that grades should not be improved absent bona fi de justification

for the change. Respondent knew or should have known that

changes without justification were inappropriate.

15. Respondent demonstrated a lack of remorse or

comprehension of the gravity of her behavior. RespondentÓs

willful indifferenc e to the fundamental concept of how grades

must be earned calls in to question her education ethics.

CONCLUSIONS OF LAW

16. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57, Fla.

Stat. (2014).

17. Section 1012.33(1)(a), Florida Statutes (2014),

provides:

(1)(a) Each person employed as a member of

the instructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.3 9 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts, except continuing contracts

as specified in subsection (4), shall contain

provisions for dismissal during the term of

the contract only for j ust 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 un der 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 needs

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.

18. Florida Administrative Code Rule 6A - 5.0 56 provides, in

pertinent part:

6A - 5.056 Criteria for Suspension and

Dismissal.

ÐJust causeÑ means cause that is legally

sufficient. Each of the charges upon which

just cause for a dismissal action against

specified school personnel may be pursued ar e

set forth in Sections 1012.33 and 1012.335,

F.S. In fulfillment of these laws, the basis

for each such charge is hereby defined:

(1) ÐImmoralityÑ means conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduc t

that brings the individual concerned or the

education profession into public disgrace or

disrespect and impairs the individualÓs

service in the community.

(2) ÐMisconduct in OfficeÑ means one or more

of the following:

(a) A violation of the Code of E thics 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 scho ol 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.

19. Florida Administrative Code Rule 6A - 10.080 provides :

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. Essentia l 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

potentia l. 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.

20. Florida Administrative Code Rule 6A - 10.081 provides, in

part:

6A - 10.081 Principles of Professional Conduct

for the Education Profes sion in Florida.

(1) The following 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 t he individual educatorÓs

certificate, or the other penalties as

provided by law.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(h) Sh all not submit fraudulent information

on any document in connection with

professional activities.

* * *

(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.

21. RespondentÓs conduct in this case is troubling for a

number of reasons. First, Respondent failed to acknowledge that

changing grades for students was inappropriate. Instead,

Respondent suggested that her beh avior was no more than as a

delivery person. Respondent facilitated the grade changes for

Ms. AllemangÓs students. She made the telephone call, she

completed the relevant forms, she signed the forms, and she

delivered the forms. There was no established basis for the

changes. Respondent knew or should have known that absent

additional work or error in computation (unlikely from a

mathematics teacher) the amended grades were not justified.

RespondentÓs claim that she was just helping out by delivering

t he forms is not supported by the persuasive weight of the

credible evidence. RespondentÓs facilitation of the grade

changes demonstrates un ethical conduct. In this case, there was

no proof that Ms. AllemangÓs students completed additional work

before gra des were changed. Respondent ignored the reality that

unilateral, unearned grade changes are never appropriate.

Ms. AllemangÓs studentÓs grade was changed as a direct result of

RespondentÓs conduct.

22. Similarly, RespondentÓs claim that there was a

Ðc ultureÑ at HCHS that supported or somehow encouraged grade

changes is not supported by the weight of credible evidence.

Coach Johnson may have wanted athletesÓ grades changed but there

was no ÐcultureÑ that grades would or should be changed absent

justifi cation for the change. In fact, student grades were not

changed on a habitual or numerically significant basis.

23. In this case , Petitioner bears the burden of proof to

establish by a preponderance of the evidence that there is just

cause for discipli nary action against Respondent. See Cropsey v.

Sch . Bd . of Manatee Cnty . , 19 So. 3rd (Fla. 2d DCA 2009) , rev.

den . , 29 So. 3rd 1118 (Fla. 2010).

24. It is concluded that Respondent initiated and

facilitated the grade changes for no fewer than two HCHS s tudents

during the 2013 - 2014 school year. It is further concluded that

such conduct constitutes just cause for disciplinary action as

Respondent acted unethically and dishonestly in the preparation

and submission of the grade changes. Additionally, Respo ndent

acted as a conduit for 13 other grade changes. Accordingly,

Petitioner has met its burden of proof.

25. As to the appropriate penalty to be imposed for

RespondentÓs lapse in judgment, the record is deficient.

According to Respondent , this is her first instance of

disciplinary action. Had Respondent exhibited remorse , a penalty

less than termination of employment might be appropriate.

Presumably , Petitioner would not want to end the employment of a

valued teacher without affording the employee a n opportunity to

establish rehabilitation. In this case, however, Respondent does

not acknowledge she acted in violation of state ethics and rules.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the P olk County School Board enter a

final order finding Respondent guilty of misconduct and imposing

such penalty as may be appropriate up to, and including,

termination of employment.

DONE AND ENTERED this 3rd day of April , 201 5 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 3r d day of April , 201 5 .

COPIES FURNISHED:

Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 , North, Suite 110

Clearwater, Florida 33761 - 1538

(eServed)

Donald H. Wilson, Esquire

Boswell and Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

( eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Kathryn LeRoy, Superintendent

Polk County School Board

1915 South Floral Avenue

Bart ow, Florida 3383 0

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 i ssue the Final Order in this case.