14-002999TTS Lee County School Board vs. Shawna Driggers Status: Closed Recommended Order on Monday, January 12, 2015.

Summary: ESE teacher guilty of misconduct in office. However, charges did not warrant termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 1 4 - 2999TTS

SHAWNA DRIGGERS,

Respondent.

_______________________________/

RECOMMENDED ORDER

D. R. Alexander, Adm inistrative Law Judge of the Division

of Administrative Hearings (DOAH) , conducted the final hearing

on October 1 4 and 1 5, 2014, in Fort Myers, Florida.

APPEARANCES

For Petitioner : Robert Dodig, Jr., Esquire

School District of Lee C ounty

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

For Respondent : Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers , Florida 33902 - 2089

STATEMENT OF THE ISSUE S

The issue s are whether Respondent is guilty of misconduct

in office, as alleged in the Petition for Termination dated

May 19, 2014 , and if so, whether termination of her employment

is an appropr iate sanction .

PRELIMINARY STATEMENT

After conducting an investigation of allegations of

misconduct by Respondent, a Pre - K indergarten /E xceptional Student

Education (Pre - K/ESE) t eacher at Caloosa Elementary School

(Caloosa) , and determining that probable ca use for disciplinary

action existed, the Lee County School Board (Board) issued a

Petition for Termination proposing to terminate her employment

for misconduct in office as defined in Florida Administrative

Code Rule 6A - 5.056 , including a violation of Scho ol Board

Policies 5.02 (Professional Standards) and 5.29 (Complaints

Related to Teachers) . Respondent timely requested a hearing,

and the matter was referred by the Board to DOAH with a request

that a formal hearing be conducted.

At hearing, Petitioner pr esented the testimony of nine

witnesses and offered Petitioner's Exhibits 1 - 7, 8 (except page

5), 9, 10, 11 (except paragraphs 2 and 3 on page 3), 12, 15 - 20,

22, and 23, which were accepted in evidence. Respondent

testified on her own behalf and offered R espondent's Exhibits 1 -

7 and 9 - 1 1. All were received except Exhibit 5, on which a

ruling was reserved. Exhibit 5 is accepted in evidence.

A four - volume T ra nscript of the hearing has been prepared.

On December 12, 2014, Proposed Recommended Orders (PROs) were

filed by the parties , and they have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

A. The Parties and the Charges

1. Petitioner is responsible for hiring, overseeing, and

terminating employees in the school district.

2. Respondent is an instructional employee who received a

bachelor's degree in special education in 2007 from Florida Gulf

Coast University . She is certified to teach (a) special

education kindergarten (K) through grade 12 ; (b) pre - K through

grade three ; (c) English to speakers of other languages ; and (d)

general education K throu gh grade six. Also, she has completed

three of four masters level courses in autism required to obtain

her Autism E ndorsement . On October 1, 2010, Respondent acquired

her prof essional services contract.

3. As an instructional employee, Respondent's employment

is governed by the Collective Bargaining Agreement between the

Board and the Teacher's Association for Lee Count y (TALC). In

order to terminate an employee under the T ALC contract, just

cause is required.

4. The incident which gave rise to this proceeding took

place on December 12, 2013, at which time the Board alleges

Respondent improperly restrained a special education student in

her classroom. Several months later , after the parents of two

other students in her classroom learned about the incident, they

came forward and , for the first time , expressed co ncerns about

behavioral issues with their children and physical injuries

(bruises on the legs and a scratch mark) t hat they attributed to

Respondent. (A third parent also telephoned the school but did

not wish to file a complaint.) T he parents' complaints

triggered the Board's proposed action.

5 . In a Petition for Termination dated May 19, 2014, the

Board alleged th at just cause exists for terminating Respondent

for the following acts of misconduct while teaching a special

education class at Caloosa during school year 2012 - 2013 and the

fa ll of school year 2013 - 2014 :

a) She i mproperly restrained a student in her clas sroom on

December 12, 2013;

b) She e xhibited "a pattern of inadequate classroom

supervision and academic focus prior to that incident " ;

c) She y elled at students and was relentless when a

student refuse d to perform a task;

d) She w as observed by a coll eague attempting to force

feed a student;

e) She t old a student, "I'm bigger than you, I will win";

f) The school r eceived complaints from the parents of two

children that they noticed an escalation of negative behavior in

their children while they were students in her classroom;

g) One of the two parent s alleged that her child's

behavior immediately improved after the child was withdrawn from

the school in February 2014; and

h) The second parent alleged that her child would come

home from school wit h bruises on his leg s ; that his speech and

behavior immediately improved after Respondent left school; and

that the child had significant diaper rash and full diapers on

several occasions when he arrived at his after - school provider.

6 . Respondent does no t dispute the a llegation that she

told a student " I ' m bigger than you, I will win ." Even so, the

undersigned has assigned that statement li ttle, if any, weight

in resolving this dispute.

B. Respondent's Employment Prior to School Year 201 2 - 201 3

7 . In the spring of 2007 Respondent completed her paid

internship with the Board as a student teacher . In August 2007

she was hired by Caloosa on an annual contract teaching

intensive academics to students with learning disabilities in

grades K through two .

8 . At the end of her first year of teaching, Respondent

received a performance assessment of high performing and /or

satisfactory in all categories. Shell e y Markgraf, her evaluator

and then the assistant principal of Caloosa, noted that

Respondent had a "r ough start" but ended the year "with a strong

finish" and that Markgraf was "very proud" of her

accomplishments. Pet'r Ex. 7, p. 73.

9 . Respondent's contract at Caloosa was not renewed at the

end of the year. There is no evidence, however, that the no n -

renewal was due to poor performance. In school year 2008 - 2009,

s he was hired by Veterans Park Academy for the Arts (VPA ) ,

another District school, where she continued teaching for the

next four years. During that four - year period , she taught K,

first, and second grade special education students with autism .

A ll were low - functioning students who were not capable of

receiving a regular diploma when they finished high school. She

was rated as satisfactory or effective for each of those years.

C. School Year 201 2 - 201 3

10. Respondent elected to return to Caloosa for the 2012 -

2013 school year, primarily because Caloosa was located closer

to her home. By then, Markgraf was principal , and even though

Markgraf h ad misgivings about hiring Respondent, she was hired

b ecause of a lack of applicants qualified to teach ESE students.

11 . Respondent was assigned to teach a small pre - K social

communications class with less than ten autism students. The

students were three to five years of age , on the autism

spectr um, and many were behaviorally challenged , easily

frustrated, and had social communication deficiencies.

1 2 . During most of the year, Respondent's paraprofessional

( helping teacher) was Sara Catalano . It is fair to say that the

working relationship be tween the two was not good. Catalano

eventually left Respondent's classroom before the end of the

school year because she felt she could not continue to work with

Respondent . According to Catalano, Respondent did not prepare

for class, her continual "scr ambling" at the last minute to get

activities prepared created a very "stressful" environment, and

Catalano felt her efforts could be better served in another

classroom. Respondent attributes her preparation deficiencies

to the fact that Caloosa used a se t teaching curriculum for

exceptional students , which had not been used at VPA, and it

took time and effort to adapt to the new requirements.

1 3 . On October 10, 2012, Caloosa ' s Behavioral Specialist,

Crystal Dormer, wrote a memorandum to the administratio n

regarding various things she had observed when she visited

Respondent ' s classroom four or five times a week. See Pet'r

Ex. 11. As further explained by Dormer a t hearing, m any times

she found Respondent in the bathroom and not supervising the

students. She estimated that Respondent went to the bathroom

approximately ten to 15 times per day and spent up to 12 minutes

in there each time. She characterized Respondent as having

controlling behavior, relentless in forcing a student to

complete a task, and lacking in patience , as evidenced by her

yelling at the students. On one occasion, Dormer observed

Respondent attempting to force feed a student who brought his

own lunch from home and refused to try the school food.

Finally, she was concerned with Respo ndent's "sporadic mood

swings" when she would be calm and pleasant with the students

and then suddenly begin yelling at them.

1 4 . On October 12, 2012, Respondent was issued a Letter of

Concern by Mark graf regarding "the many concerns various people

have h ad that have come in and out of [her] room." Pet 'r Ex.

16. These concerns included "screaming" at students (which was

heard by teachers and other personnel passing by the classroom) ,

failing to supervise her students, using her cellphone " all the

time " d uring class for personal calls ( m ost of which were made

to her husband in a loud and argumentative tone ) , being easily

frustrated with other teachers, and having a lack of patience

with the students. School policy is for teachers to have their

cell phones turned off during the day and used only for

emergencies. Finally, two teacher aides asked to be removed

from her classroom because " they were uncomfortable with the way

things were going. "

1 5 . In the Letter of Concern, which addressed only some of

the complaints received by Markgraf , Respondent was specifically

instructed to not have her cell phone out when supervising

students; supervise her classroom at all times; treat students

with respect; not attempt to force students to try the school

lunch if th ey brought a lunch from home; and focus on school

issues rather than personal issues at home . Pet'r Ex. 16.

Respondent did not deny the allegations or protest receiving the

Letter of Concern.

1 6 . On April 8, 2013, Respondent received a L etter of

R eprima nd for Unsatisfactory Performance for sleeping during

"naptime" at her desk. Pet 'r Ex. 17. The incident was first

reported by Catalano who , after knocking on the door, entered

the classroom to obtain supplies (pencils) and noticed that for

around four mi nutes, Respondent sat at her desk with her head

lowered and did not raise her head or otherwise acknowledge her

presence. The assistant principal , Diana Lowrey, then went to

the classroom and observed Respondent with her head down and

appearing to be asle ep . Although R espondent contended that she

was not sleeping but was holding her head down while waiting for

a pain reliever to start relieving a migraine headache , this

explanation was not accepted. The Letter of Reprimand directed

Respondent to remain a wake and alert during all supervisory time

periods or call somebody to cover her classroom . The Letter

indicated that she had violated School Board Policy 4.01

regarding student safety.

1 7 . The performance evaluation for school year 2012 - 2013

had a ratin g scale that included, from best to worst, Exemplary,

Accomplished, Basic, and Requires Action. Basic means you need

improvement, while Requires Action means something is

dr astically not right. In the 20 areas evaluated for Respondent

that school year, R espondent received one Exemplary

(Communicating With Families) . According to Markgraf, " parents

loved her " because she was " very good at communicating " with

them. She also received nine Accomplished, nine Basics, and one

Requires Action. See Pet'r Ex. 7 . The Requires Action was in

the area of Establishes and Manages Classroom Procedures. Id.

Markgraf testified that she wanted Respondent to " improve on

classroom supervision " and " to improve on the way she spoke to

and treated kids, and her peers. "

1 8 . In her written comments, Markgraf noted that "[w]hile

she had done some great things in her classroom and with her

peers, there are some things I would like to see improved for

next year." Pet'r Ex. 7 , p. 51. Markgraf went on to say that

there "have be en a couple of instances where supervision has not

been optimal in the classroom, this needs to improve to 100%.

On days when Shawna is not 100%, she has frustration problems

with students and is not always respectful to them, and is not

always prepared." Id. The evaluation concluded that "Shawna

has done everything I've asked of her this year and I look

forward to a very successful next year." Id.

D. School Year 2013 - 2014

1 9 . Respondent returned to Caloosa for school year 2013 -

2014 . Al though she was still one course short of obtaining her

Autism Endorsement, she was again assigned to teach pre - K

autistic students. The class began with four students but by

October 2013 had increased to eight. Most of the students were

new to a school environment , their academic levels were much

lower than the students she had the year before, and they were

either nonverbal or had very limited verbal communication. In

short, they were a far more challenging group to manage than the

students she taught the previous year.

2 0 . Respondent ' s paraprofessional was Andrea Schafer .

A second paraprofessional, Deborah Wagner, spent approximately

90 minutes per day in the classroom after the classroom size

reached eight students . At the beginning of the school year,

Ma rk graf instructed Schafer to immediately inform her of any

concerns regarding Respondent's conduct or classroom management.

2 1. Until December 2013, Schafer did not report any

concerns to Mark graf . Undoubtedly, as Markgraf suggested, t his

was because " te achers and staff don ' t like to tell on each

other, " but wait until " things have spiraled out of control. "

W hen Schafer concluded that things were going " downhill , " she

spoke with Mark graf on December 6, 2013 . She reported that

Respondent was engaged in " troubling behavior," and that she was

spending "more and more time in the bathroom" and "more time on

her phone" texting messages, mainly to her husband. Also,

Schafer reported that Respondent wo uld allow the students to

just s it in front of the "You Tube videos" for academic lessons,

rather than presenting live instruction . W hile this took place,

Respondent would go to the restroom , presumably to use her cell

phone , leaving Schafer to manage the classroom .

2 2 . With Markgraf's approval, Schafer began k eeping

detailed notes on index cards regarding Respondent's

performance. See Pet'r Ex. 9. As it turned out, Respondent was

suspended a few days later so notes were only recorded for

Respondent' s activities on December 9, 10, and 11, 2013 . They

reflect, among other things, that Respondent continued to remain

in the bathroom for long periods of time (up to 19 minutes) , and

she was using her cell phone for personal calls . The notes also

reflect that student D.M. was very non - compliant and disruptive ,

that Respondent had difficulty managing him, and that D.M.'s

father met with Respondent in the classroom on December 10,

2013.

2 3 . The other paraprofessional, W agner , confirmed that

after she was assigned to the classroom in October, she observed

Respondent spending "a lot" of time in the bathroom, especially

when the children were eating, and that she would put her cell

phone away when leaving the bathroom . This led Wagner to

conclude that Respondent was using her cell phone while in the

bathroom.

E. The D ecember 12, 2013 Incident

2 4 . One of Respondent's students was D.M., then four years

old, who had transferred to Caloosa in October 2013 from a

school in New York City. According to Mark graf , D.M. "was a big

kid, and he was violent when he went off, and it wasn't a secret

in school." Dormer described him as "aggressive, noncompliant,

and disruptive," and that he would "hit, throw things, scream,

pinch, [and] bite on occasion." She testified that D.M. was one

of two out of 35 autistic students that year that caus ed her the

most problems. Wagner testified that D.M. " had more frequent

temper tantrums " than other students and that if you asked D.M.

to do anything, he would start crying. S c hafer agreed with

Wagner's assessment and noted that Dormer had to b e called a

number of times to remove him from class. At hearing, D.M.'s

mother testified (through an interpreter) that as a disciplinary

measure at home , her husband would take off his belt and show it

to D.M. whenever he misbehaved , but she denied that h e ever used

it when punishing the child. However, on a visit to

Respondent's classroom on December 10, 2013, the father took off

his belt and offered to give it to Respondent to use on his son

if a disciplinary problem arose. In sum, the evidence shows

that D.M. was probably the most difficult autistic child in the

school to manage and teach.

2 5 . The incident in question began on the morning of

December 12, 2013, after Respondent attempted to have D.M.

perform a counting exercise f rom one to 100. Comp leting the

exercise was necessary before the Christmas break in order for a

new Individualized Education Program (IEP) to be prepared for

D.M. His current IEP had been prepared in New York and needed

to be revised to conform to Florida requirements. Rath er than

count, D.M. wanted to play on the computer, his favorite

activity. At that point he became combative and disruptive.

2 6 . W hile changing the diapers of a student in the

bathroom that adjoins the classroom, Schafer heard yelling in

the classroom. When she entered the classroom, she observed

D.M. sitting in a chair in front of a table in the back of the

room with Respondent standing behind him. D.M. was "very upset

and very aggressive" and swinging his arms in an effort to free

himself. Schafer st ated that Respondent had her hand on the

back of D.M.'s neck and was attempting to push his head onto the

table in front of him. Respondent says she was simply trying to

keep the child seated until the counting exercise was completed.

2 7 . Schafer also ob served Respondent holding D.M.'s

fingers and pushing them into his wrist in an effort to rest r ain

him from hitting her. When D.M. attempted to bite Respondent,

she raised his arm towards his mouth to prevent this. While

this was occurring, D.M. was compl aining that it hurt and was

crying. At one point, Respondent held D.M. ' s arms behind his

back.

2 8 . Schafer asked Respondent if the behavioral specialist

should be called to the classroom. She asked because on prior

occasions when D.M. was having a "te mper tantrum" or refusing to

comply with instructions, Dormer , who "helps out when a student

is in crisis," had been called to the classroom to assist

Respondent. Respondent replied that this was not necessary.

2 9 . Wagner was present for a part of the in cident. She

walked into the classroom and observed Respondent standing

behind D.M., who was crying and seated in a chair in front of a

table. Respondent's hand was on D.M.'s neck pushing his head

toward the table. Respondent asked Wagner to stand behind D.M.

and hold him while she temporarily left the area to pick up

items needed for the other students. Although she did not see

Respondent take D.M.'s hands and push his wrists down, she

stated that Respondent had done this on a few other occasions

whenev er a student attempted to bite her.

30. Schafer says the incident was over "pretty quick," and

after continual prompting by Respondent, D.M. completed most or

all of the counting exercise and was allowed to go to a

computer. The student did not suffe r any physical injuries

during the incident .

3 1 . Schafer did not immediately report the incident, as

she was unsure if the techniques being used by Respondent were

appropriate , and she did not want to get Respondent in trouble

if the y were allowed. D ur ing lunch hour, she checked with

Wagner to see if Respondent's actions may have been authorized.

Wagner was not trained in that area and was unsure. After

lunch, Schafer discussed the incident with Dormer, who then

reported the matter to Markgraf .

3 2 . Respondent testified that her method of restraining

D.M. was a safe and effective way to restrain him while he was

out of control and was consistent with her training at VPA. She

explained that when a special education student resorted to bad

behavior as a tactic for not completing a task, she was trained

to complete a "work through," which essentially requires the

student to finish the task regardless of their behavior.

H owever, this assertion was not corroborated by any personnel

from VPA. She also st ated that the restraint was consistent

with training she had received for her Techniques for Effective

Adolescent and Child Handling (TEACH ) certification . However ,

her certification had lapsed, she had not received current

training in order to become rec ertified , and her understanding

differed from Dormer's interpretation of TEACH .

33. According to Dormer, who instructs the TEACH

certification program at Caloosa , it is never appropriate to

bend a student's hand s behind his back, push a student's head

d own towards a table , or bend a child's fingers into his wrist .

See Pet'r Ex. 15. She also testified that a teacher should

never use physical force in making a child comply with a task.

She explained that if an autistic student has a temper tantrum

or en gag es in other non - complian t behavior , the proper protocol

is to call her and have the child temporarily remove d from the

classroom. Dormer's testimony is accepted as being the most

persuasive on this issue. Therefore, while Respondent believed

that her method of restraining the child was permissible and

necessary u nder school polic y , it was contrary to TEACH and

constituted improper restraint of a student .

34. After receiving Dormer's report, Markgraf treated the

incident as "improperly restraining a st udent" and contacted the

Professional Standards and Equity Office (PSEO) . She also

collected statements from the witnesses and Dormer. At the end

of the school day, Markgraf advised Respondent that she was

suspended with pay, effective immediately, while the matter was

further investigated. Markgraf also reported the incident to

the Department of Children and Families (DCF) as possible child

abuse. Although DCF took the report and investigated the

matter, no charge of child abuse was ever lodged again st

Respondent. Finally, D.M.'s parents were n otified.

3 5 . Based on the above incident, and "a possible pattern

of inadequate classroom supervision and academic focus" prior to

the incident, a pre - determination hearing was conducted by the

PSEO on January 21, 2014. Notwithstanding these charges, a fter

the hearing, Respondent was notified that she could return to

the classroom for the remaining school year. Respondent was

told that she would be taking the place of a K teacher who was

going on maternity le ave. As d iscussed below, it is fair to say

that had D.M. ' s father not conducted a one - man vendetta against

Respondent in an e ffort to have her terminated from Caloosa ,

Respondent would have continued teaching at the school , at least

for the remainder of t he school year .

E. The Parents

3 6 . When D.M.'s father learned that Respondent's

employment with Caloosa would not be terminated , he was

obviously very unhappy. Even though his child was not

physically injured, h e reported the incident to the Cape Coral

Police Department and asked that criminal charges be filed

against Respondent . A police report was prepared, but no

charges were ever filed by the State Attorney ' s Office . See

Pet'r Ex. 18. He also engaged the services of a n attorney and

put the Board o n notice that a civil lawsuit may be filed.

3 7 . After D.M.'s father obtained a copy of the police

report, he made additional copies, stood outside the school

grounds, and distributed the police report to any " parents [ of

students ] that would take it , " or anyone else who was

interested , along with a cover sheet stating in pertinent part:

Please read the following police report

provided by the Cape Coral Police Dept.

Regarding: Abuse to my Son by his Special

Needs Teacher, Shawna Driggers

For Further I nformation, please contact:

[D.M.'s Father]

[telephone number omitted]

Although the father did not testify at the final hearing, it can

be inferred that his intentions were to disseminate information

about the incident to as many people as possible in an effort to

bring pressure on the Board to terminate Respondent.

3 8 . As a result of the distribution of the hand - out and

the police report, the parents of two other children in

Respondent's classroom, E.P. and G.D. , contacted one another and

spoke with D.M .'s father . After speaking with D.M.'s father,

they decided that any perceived problems experienced by their

children during the fall school year should be reported to the

school and blamed on Respondent . After verifying that the

police report was accura te, the parents contacted the P SEO and

complained that Respondent was responsible for bruises on the

leg s of one child (G.D.) and a scratch mark on the neck of the

other (E.P.) . They also attributed certain negative behavior al

issues and lack of progress in the classroom to Respondent's

actions or neglect.

3 9 . Throughout the fall that school year, the parents

received daily planners from Respondent setting forth the

activities and progress of their child ren , and Respondent was

always available to speak with them by text, email, or cell

phone. They also met with Respondent on several occasions .

Notably, b efore reading the police report given to them by

D.M.'s father, and conferring with one another, they had never

complained about behavior issues or pro gress in school to either

Respondent or school officials . Ironically, the year before

Respondent had been given a high rating for communications with

parents , and according to Markgraf , the parents " loved her . "

40 . The mother of E.P., a three - year - old student with very

limited communication skills , testified that her son started to

become more aggressive during the first week of school , had

trouble sleeping, and began screaming words that he did not hear

at daycare or at home. She acknowledged, however , that his

limited communication skills may have contributed to his

aggressive behavior with others; that Respondent was always

"brainstorming" with her throughout the fall on how to improve

her son's behavior; and that Respondent was always accessible to

discuss any issues about her son. She also admitted that her

negative opinions regarding Respondent may have been influenced

by the police report.

41. According to E.P.'s mother, the child's behavior

improved after Respondent was suspended . However, e ven after

Respondent was replaced with a new teacher in January 2014, the

mother was still dissatisfied with her child ' s progress , and she

wi thdrew him from Caloosa the next month and placed him in

daycare . She testified that after he enrolled in daycare, the

child experienced a huge improvement in his behavior.

4 2 . The mother of student G.D. , a three - year - old who was

totally non - communicative when he began the school year,

testified that before enrolling in Respondent's class, her child

was not violent, did not throw tantrums, and except for being

"hyper," did not act out in any way. She noted that while her

son made significant progress with sign language, he did not

make any progress with his speech, and he consistently came home

with "clusters of brui ses " on his shins , which she believes were

caused by Respondent striking or kicking her son . She further

testified that the child's speech improved significantly and he

had "a complete turnaround" after a new teacher was assigned to

his class . But almost a year later in October 2014, when she

testified, she admitted he still had only a "little bit" of

speech. Finally, she testified that the child had issues with a

diaper rash while in Respondent's care a nd arrived at daycare

two or three times with full diapers . Changing diapers was the

responsibility of the paraprofessional, not Respondent, and

these concerns were never brought to the attention of Respondent

so that the problem , if generated at Caloosa, could be

rectified .

4 3 . The allegation that Res pondent was responsible for

physical injuries to the two students is not cre dited for

several reasons. First, t here is no credible evidence that the

scratch mark on E.P.'s neck, or the bruises on G.D.'s shins ,

were caused by Respondent. Moreover, Wagner, who monitored the

children in October and December , never observed the alleged

injuries. Third, there is no record of any medical treatment at

the school clinic for either student. Fourth, except for the

scratch mark, the injuries were never reported to school

officials at the time they were observed by the parents. As to

the allegations regarding behavioral issues or lack of progress

in school, they were not corroborated by any other evidence , and

it is reasonable to infer that the parents were unduly

influenced by the police report and conversations with D.M.'s

father .

F. The April Board Action

4 4 . Although it was previously determined that the charges

against Respondent did not warrant termination, the P SEO decided

to reconsider the matter after the parents came forward with

their complaints . A second investigation was conducted, and

another pre - determination conference was held on April 22, 2014 .

After the conference , a recommendation was made to the Board to

terminate Respondent, obviously due in large part to pressure

from the parents and the notoriety now surrounding the

December 12, 2013 incident. This resulted in the issuance of

the Petition for Termination.

4 5 . Even though Respondent taught only a portion of school

year 2013 - 2014 , Markgra f was required to prepare an evaluation

for th e school year. Markgraf characterized it as a "very poor

evaluation compared to everyone else."

CONCLUSIONS OF LAW

4 6 . Because t he Board seeks to terminate Respondent's

empl o yment , it bears the burden of proo f and must prove the

allegations in the Petition for Termination by a preponderance

of the evidence . See, e.g. , McNeill v. Pinellas Cnty. Sch. Bd. ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996) ; § 120.57(1)(j), Fla.

Stat.

4 7 . As a member of the instructional st aff, Petitioner may

be suspended or dismissed at any time during the term of her

employment contract for just cause, as provided by the TALC

Agreement and section 1012.33(1)(a), Fla. Stat. ("All such

contracts, except continuing contracts as specified in

s ubsection (4), shall contain provisions for dismissal during

the term of the contract only for just cause.").

4 8 . Section 1012.33(1)(a) establish es "just cause" as the

standard for teacher discipline. Just cause includes misconduct

in office.

4 9 . Rul e 6A - 5. 0 56(2) defines "misconduct in office" as

follows:

(2) "Misconduct in office" means one or

more of the following:

(a) A violation of the Code of Ethics of

the Education Profession in Florida as

adopted in Rule 6B - 1.001 [now 6A - 10.080] ,

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 [now 6A - 10.081] , F.A.C.;

(c) A violation of the adopted school board

rules ;

(d) Behavior that disrupts the student's

learning environment; or

(e) Behavior that reduces the teacher's

ability or his or her colleagues' ability to

effectively perform duties.

50 . Respondent is charged with miscondu ct in office as

defined in each of the paragraphs by violating the Code of

Ethics o f the Education Profession of Florida , the Principles of

Professional Conduct for the Education Profession in Florida ,

and B oard Policies 5.02 and 5.29, which relate to Professional

Standards and Complaints Related to Employees, respectively;

conduct that is disruptive to the student ' s learning

environment; and behavior that has reduced her ability to

effectively perform her duties. Although Respondent contends

for the first time in her PRO that the Petition for Termination

fail s to identify the specific p aragraphs of the Code of Ethics

and Principles of Professional Conduct that Respondent allegedly

violated, the charging document is sufficient to put Respondent

on notice as to the violations and conduct which occasioned

those violations. See, e.g. , Jacke r v. Sch. Bd. of Dade Cnty. ,

426 So. 2d 1149, 1151 (Fla. 3d DCA 1993). Moreover, to the

extent there arguably may have been any ambiguity, Respondent

did not seek greater clarity during discovery or the final

hearing. No prejudice is found.

51 . The prep onderance of the evidence establishes that

Respondent deviated from TEACH standards and improperly

restrained a student in her classroom on December 12, 2013; that

she exhibited a pattern of inadequate classroom supervision

during school year 2012 - 2013 and the fall of school year 2013 -

2014 by spending an inordinate amount of time on her cell phone

and in the bathroom during classroom hours; that she frequently

yelled at students and was relentless in having a student finish

a task; that on one occasion she attempted to force feed a

student ; that her conduct was disruptive to the student's

learning environment; and her conduct reduced her ability to

effectively perform her duties . These established facts

constitute misconduct in office within the meaning of paragraphs

(2)(d) and (e).

52. The complaints by the parents, while taken as sincere,

were subjective, were unduly influenced by the police report and

D.M.'s father, and were not corroborated by any other credible

evidence . Accordingly, they have not b een credited .

5 3 . Respondent is also charged with violating Board Policy

5.02, which relates to professional standards and requires

school faculty to demonstrate "dedication to high ethical

standards." However, the policy is a general aspirational

stan dard or goal that is too vague to proscribe particular

conduct and to put employees on notice of the standard to which

they must conform their conduct. See , e . g . , Lee Cnty. Sch. Bd.

v. Rice , Case No. 13 - 1676, 2013 Fla. Div. Adm. Hear. LEXIS 855

at *55 (Fl a. DOAH Dec. 20, 2013 ; L ee Cnty. Sch. Bd. Jan. 28,

2014). Likewise, Board Policy 5.29, which requires employees to

"exemplify conduct that is lawful and professional and

contributes to a positive learning environment for students,"

does not establish stan dards or prescribe sanctions for

violation of those standards. "It is only a procedural policy

governing making complaints and the investigation of those

complaints." See Lee Cnty. Sch . Bd. v. Landau , Case No. 13 -

4171TTS, 2014 Fla. Div. Adm. Hear. LEXIS 151 at *15 (Fla. DOAH

Mar. 31, 2014)(no final order entered because employee

resigned ). The refore, the allegation that Respondent violated

two Board policies should be dismissed.

5 4 . Respondent is also charged with violating paragraphs

(2) and (3) of t he Code of Ethics of the Education Profession ,

now codified in rule 6A - 10.080 , which read as follows:

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will the refore

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 one's

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

However, it has been stated many times that t hese standards "are

so general and so aspirational as to be of little practical use

in defining normative behavior." See, e.g. , Miami - Dade Cnty.

Sch. Bd. v. Brenes , Case No. 06 - 1758, 2007 Fla. Div. Adm. Hear.

LEXIS 122 at *42 - 43 (Fla. DOAH Feb. 27, 2007 ; Miami - Dade Cnty.

Sch. Bd. Apr. 25, 2007). In any event, there was insufficient

evidence to find a violation of thes e ideals.

5 5 . Finally, Petitioner alleges that Respondent has

violated the following Principles of Professional Conduct , now

located in rule 6A - 10.081 , which state in relevant 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 student's mental

and/or physical health or safety.

(b) Shall not unreasonably restrain a

student from independent action in pursuit

of learning.

* * *

(e ) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or deny

a student's legal rights.

* * *

(5) Obligation to the profession of

education requires that the individua l:

(a) Shall maintain honesty in all

professional dealings.

The evidence supports a conclusion that Respondent's conduct

amounts to a failure to protect the students in her classroom

from conditions that were harmful to their mental health, to

learnin g, and to safety, as required by paragraph (3)(a). The

evidence does not support a conclusion that any other principles

were violated.

56. Given the facts set forth herein, the case is now in

the identical posture that it was when the first pre -

determina tion hearing was held in January 2014. At that time,

the misconduct was not considered serious enough to warrant the

termination of Respondent's employment or continuance of her

suspension . With clearly no change in circumstances or

additional charges , R espondent's suspension should be

terminated , and she should be reinstated as a special education

teacher at a different school.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Lee County School Boar d enter a final

order determining that Respondent is guilty of misconduct, as

defined in rule 6A - 5.056(2) (b), (d) , and (e), terminating her

suspension, and reinstat ing her as a special education teacher

at a different school. All other charges in the Peti tion for

Termination should be dismissed.

DONE AND ENTERED this 12th day of January , 201 5 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tal lahassee, 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 12th day of January , 201 5 .

COPIES FURNISHED:

Dr. Nancy J. Graham, Superintendent

School Dis trict of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

(eServed)

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

(eServed)

Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

(eServed)

Lois S. Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewar t , Commissioner

De partment of Education

Turlington 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 of the date of this Reco mmended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.