16-002570TTS Sarasota County School Board vs. Judy Conover Status: Closed Recommended Order on Thursday, January 5, 2017.

Summary: Petitioner had just cause to terminate Respondent's employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 16 - 2570TTS

JUDY CONOVER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearin g in this cause was held

October 19 through 21, 2016, in Sarasota, Florida, before

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

of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Robert K. Robinson, Esquire

Kirk Pinkerton, P.A.

6th Floor

240 South Pineapple Avenue

Sarasota, Florida 34236

For Respondent: Ronald Angerer, II, Esquire

Law Offices of Archibald J.

Thomas, II I, P.A.

Suite 255

4651 Salisbury Road

Jacksonville, Florida 32256

STATEMENT OF THE ISSUE

Whether just cause exists to terminate Respondent from her

employment with the Sarasota County School Board.

PRELI MINARY STATEMENT

By correspondence dated February 22, 2016, the Sarasota

County School Board Superintendent Lori M. White informed

Respondent, Judy Conover, that a recommendation seeking the

termination of her employment would be submitted to the Sarasota

County School Board (Petitioner or School Board) for appropriate

action. Additionally, by correspondence dated April 26, 2016,

Superintendent White informed Respondent that a second

recommendation seeking the termination of her employment would be

submitt ed to the School Board for appropriate action.

In response to the February 22 correspondence, Respondent

timely requested a ÐDOAH hearing option.Ñ By correspondence

dated May 6, 2016, the matter was f orwarded to DOAH for a

disputed - fact hearing. The fina l hearing was initially set for

July 20 and 21, 2016. On July 1, 2016, Respondent filed a motion

for judgement on the pleadings, and on July 5, 2016, Respondent

filed a motion to compel better answers to interrogatories. On

July 7, 2016, Petitioner filed a motion for continuance and

requested three to four days for the heari ng, instead of the

original two - day request. Following a telephonic motion hearing

on July 14, 2016, RespondentÓs motion for judgement on the

pleadings was denied, and PetitionerÓs mo tion for continuance was

granted. The matter was rescheduled and heard as listed above.

Additionally , as a result of the telephonic motion hearing,

Petitioner was ordered to file a more definitive statement, and

Respondent was granted 21 days following th e issuance of the more

definitive statement to file a response. Petitioner filed an

Administrative Complaint on August 3, 2016, setting forth the

allegations. ÐRespondentÓs Answer to PetitionerÓs Amended

Administrative ComplaintÑ was filed on September 9 , 2016. 1/

RespondentÓs answer also included a section of ÐAffirmative and

Other Defenses.Ñ Eight days before the hearing, Respondent filed

an ÐAmended Answer to PetitionerÓs Amended Administrative

Complaint,Ñ which revised paragraph 34, and set forth an

additional affirmative defense, claiming that Petitioner was

barred from Ðtaking disciplinary action against Respondent on the

basis of speech and activities protected by the First Amendment

to the United States Constitution and Sections 4 - 5 of the

Constit ution of the State of Florida.Ñ Petitioner filed a motion

to strike the pleading. To the extent necessary, the motion to

strike is granted; the undersigned has no authority to rule on

constitutional issues.

At the final hearing, Petitioner called: Scott Lempe,

d eputy s uperintendent of the School Board; LaShawn Frost,

principal of Booker Middle School (Booker); Al Harayda,

PetitionerÓs employee relations and equ ity administrator; Brian

Dorn, assistant p rincipal (AP) of Booker; Derek Jenkins, AP of

Booker; Jessica Scherzer, a teacher at Booker; and Respondent.

Respondent testified on her own behalf and called Patricia

Goodwin, a retired Booker teacher , and three current Booker

teachers to testify on her behalf: Charles Woods , Cheryl Ann

Kerr , and Angie OÓ Dell.

With the consent of both parties, Joint Exhibit 1 (which was

originally PetitionerÓs Exhibit 4) was admitted into evidence.

Petitioner's Exhibits 1 through 3, 5 through 27, 29 through 33,

35 through 48, 50, 51, 53 through 55, 57B , 2/ 58, 59, 63, 65, 67

through 72, 74, 76 through 85, 3/ 101 through 103B, 4/ 112, 114, 116,

117, and 125 were admitted into evidence. The following exhibits

were taken under advisement, and now, after further review, are

admitted: PetitionerÓs Exhibits 56, 60, 113, 120 and 1 21.

Exhibit 57A is not admitted. RespondentÓs Exhibit 1 was

initially taken under advisement; however, Responde nt asked that

judicial notice be taken , which is granted . 5/ RespondentÓs

Exhibits 3, 4, 7 through 30, and 34 were admitted into evidence. 6 /

At the conclusion of the hearing, PetitionerÓs counsel

requested additional time in which to file its proposed

recommended order. Respondent did not oppose the request , which

was granted.

The five - volume Transcript of the proceeding was filed with

DOAH on N ovember 8, 2016. On November 8, a Notice of Filing

Transcript was issued advising the parties that the Transcript

had been filed and their respective proposed recommended orders

(PROs) we re to be filed before 5:00 p.m. on November 28, 2016.

Both parties timely submitted their PROs. To the extent that

either PRO contained new testimony or evidence, not subject to

cross - examination, that information has not been considered.

Otherwise, both PROs have been considered in the preparation of

this Recommended O rder.

Unless otherwise noted, all references are to Florida

Statutes shall be the 2016 edition.

FINDING S OF FACT

GENERAL BACKGROUND

1. Petitioner is responsible for operating the public

schools in the Sarasota County School District and for hiring,

firing , and overseeing both instructional employees and non -

instructional Ðeducational supportÑ employees within Sar asota

County, Florida.

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

employed by the Sarasota Board as a teacher at Booker.

Respondent holds a multi - grade integrated teaching certificate ,

which allows her to teach middle school through ninth grade

students. Respondent taught high school level algebra during the

2012 - 2013 and 2013 - 2014 school years, and social studies during

the 2014 - 2015 and 2015 - 2016 school years at Booker.

3. Booker is a T itle I public school which has

approximately 800 to 900 students, and 60 to 80 instructional

personnel. Ms. Frost is now the principal at Booker, having

previously served as one of its assistant prin cipals.

4. At the beginning of each school year, teachers report

one week prior to the students (planning week) . During planning

week, teachers are reminded of the schoolÓs e xpectations for the

coming year, they develop lesson plans for the coming year, they

set up their individual classrooms, and they are provided

additional professional development. BookerÓs administrators set

high standards for their teachers and students.

5. The pertinent parts of the performance responsibilities

within the job desc ription for instructional teachers are as

follows:

* 10) Establish and maintain effective and

efficient record keeping procedures. 7 /

* * *

* (13) Participate in the development and

implementation of IEPÓs, EPÓs & 504 Plans for

exceptional educati on students, as

appropriate.

* * *

* (15) Interpret data for diagnosis,

instructional planning and program

evaluation.

* * *

* (21) Apply appropriate instructional

modification for students with special needs.

* * *

* (27) Com municate effectively, both orally

and in writing, with other professionals,

students, parents and the community.

* * *

* (35) Prepare all required reports and

maintain all appropriate records.

6. There was no dispute that a collective bargainin g

agreement (Ð CBA Ñ) existed between the School Board and the

Sarasota Classified/Teachers Association (SC/TA). Article XIX of

the CBA references the evaluation of students. The pertinent

part of Article XIX includes:

A. Teachers shall maintain the

respo nsibility to determine grades and other

evaluations of students within the terms of

the grading regulations of the Sarasota

County School system.

7. Ms. Frost believes that every child deserves a Ðhigh

quality educationÑ and she looks for highly effectiv e teachers to

ensure they are providing quality education for all BookerÓs

students. Ms. Frost maintains that Ðregardless of what the

socioeconomic situation might be for [the] children, they deserve

to be educated, obtain a college - and career - readiness

education.Ñ Booker teachers are expected and required to teach

the Florida standards, which are Ðmuch more rigorous standards

thanÑ before. These standards require Ðteachers to be more

deliberate about their planning, . . . classroom procedures, and

inst ructionsÑ and develop a student - centered classroom.

8. A Weingarten hearing (Weingarten) 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 app ear with or without representation. Based on

the facts obtained during a Weingarten hearing and the

investigation, a determination is made whether any disciplinary

action is necessary.

9. A Professional Learning Community (PLC) , 8 / is composed of

all teac hers in a specific grade level and subject area. During

a PLC meeting, its members may discuss lesson planning, joint

tests or assessments for each unit, goals, and studentsÓ

accomplishments. The PLC leader (or one of its members) is

required to document attendance and the content of the

discussions to BookerÓs administrator. The PLC meeting times are

established during the planning week at Booker and attendance is

required. In the event a teacher is off - campus during the

regularly scheduled PLC meeting time, their absence may be

excused.

10. The Student Information System (SIS) maintains

studentsÓ schedules, contact information for students and their

parents or guardians, and other pertinent student information.

The SIS is controlled through user name and password protection,

and all the information contained in the SIS is not available to

teachers.

11 . Gradebook is an electronic system by which teachers are

to input studentsÓ grades (assignments, projects, tests and

exams) on a regular basis. Parent s can access their studentÓs

grades via the internet (including a telephone application) to

monitor the studentÓs progress in each class. BookerÓs

expectation is that grades will be inputted on a regular basis,

preferably within a week of the completion o f the assignment or

test. Once all the grades are entered, Gradebook calculates mid -

term or final grades for the students. During the planning week

teachers are provided time to set up their Gradebook, and a

standardized schedule of when the mid - quarter and quarter grades

are to be completed. The teachers are reminded of these

deadlines throughout the year. If a teacher fails to enter the

mid - quarter or quarter grades by the stated deadline, the system

locks the teacher out, and the grades must be han d w ritten.

12. Additionally, Gradebook is used by Booker (and other

schools) to take student attendance. Taking attendance in the

first five days of each school year is critical because those

attendance numbers are used to determine the appropriate funding

for Booker (and other schools in the school system).

13. In order to access Gradebook, each teacher is assigned

a confidential ÐAÑ number and password. Grades are to be entered

by teachers, not paraprofessionals or volunteers. When there are

two teacher s in a classroom, such as the inclusion room at

Booker, the main teacher is responsible for inputting the grades.

14. Each night, information from the Gradebook (the grades

posted that day) is uploaded to the SIS.

15. A performance improvement plan (PIP) is basically an

action plan to assist an underachieving teacher to succeed. The

administrator who supervises the teacher provides coaching and

criticism in an effort to improve the teacherÓs performance.

16. The CBA provided for progressive discipline.

17. Turning to Article XXV of the CBA , entitled

ÐDisciplinary Actions,Ñ the pertinent parts state :

A. Scope of Article

1. This article covers actions involving

oral or written warnings, written reprimand,

suspensions, demotions, dismissals, or

reductio ns in grade or pay with prejudice.

2. Disciplinary action may not be taken

against a teacher except for just cause, and

this must be substantiated by sufficient

evidence which supports the recommended

disciplinary action.

3. All facts pertaining to a d isciplinary

action shall be developed as promptly as

possible. Actions under this Article shall

be promptly initiated after all the facts

have been made known to the official

responsible for taking the action.

* * *

C. A teacher against whom di sciplinary

action is to be taken may appeal the proposed

action through the grievance procedure.

D. A teacher against whom action is to be

taken under this Article shall have the right

to review all of the information relied upon

to support the proposed action and shall be

given a copy upon request.

E. The Union shall be provided with a copy

of all correspondent s that is related to the

action of the teacher the Union is

representing.

F. The teacher and his/her representative

shall be afforded a reason able amount of time

to prepare and present appropriate responses

to the proposed actions under this Article,

through Step One of the Grievance Process.

This amount of time is to be mutually agreed

upon by the parties.

* * *

H. Previous charges or actions that have

been brought forth by the administrative may

be cited against the teacher if these

previous acts are reasonably related to the

existing charge. All previous charges or

actions must have been shared with the

teacher.

1. The disciplin e, dismissal, demotion, and

suspension of any teacher shall be for just

cause.

2. Where just cause warrants such action(s),

a teacher may be demoted, suspended, or

dismissed upon recommendation of the

immediate supervisor to the Superintendent of

Schools . Except in cases that constitute a

real immediate danger to the district or

other flagrant violation, progressive

discipline shall be administered as follows:

a. Verbal reprimand. (Written notation

placed in site file.)

b. Written reprimand filed in personnel and

site files.

c. Suspension with or without pay.

d. Dismissal.

* * *

K. During the pendency of an investigation

into an allegation of wrongdoing on the part

of a teacher, the teacher may be temporarily

reassigned only if the cha rges, if proven to

be true, could lead to the teacherÓs

termination or suspension or if the teacherÓs

conduct poses a threat to any individualÓs

safety.

18. BookerÓs administrators Frost, Dorn, and J enkins,

corroborated the collaborative or triangulation leadership style

they utilized at Booker. If one administrator learned of a

situation, all three administrators were involved in the

investigation and determination of any necessary corrective

measures. All three Booker administrators try to coach

under performing teachers through informal counseling or verbal

assistance, and memoranda of instructions, both of which are not

considered disciplinary actions. In most instances, when a

teacher is apprised of a concern, the verbal assistance is

sufficient to correct the concern. When the verbal assistance or

memoranda of instructions are ineffec tive, the administrators use

progressive discipline.

19. Respondent was verbally counseled at different times by

AP Dorn and AP Jenkins of the need to take attendance and/or

timely input grades. In October 2012 and February 2014 ,

Respondent received a Memorandum of Instruction from AP Jenkins.

The October memo highlighted the need for Respondent to take

attendance each day, Ðwithin the first fifteen minutesÑ for each

class. The February memo advised Respondent to enter her grades

Ðweekly for parents to access and monitor.Ñ

DISCIPLINE AT ISSUE

20. A Memorandum of Understanding (MOU or agreement), dated

October 29, 2015, was execut ed by Respondent, Barry Dubin,

e xecut ive d irector of the SC/TA, and Deputy Superintendent Lempe.

This MOU resolved three outstanding disciplinary actions (one

recommendation for a suspension, and two recommendations for

employment termination) against Respondent. The contents of the

MOU pro vided:

With regard to the grievance filed on behalf

of Ms. Judy Conover a Te a cher currently

assigned to Booker Middle School, the

undersigned parties do hereby agree to the

following terms:

1. The Board agrees to withdraw its two

termination actions pend ing against

Ms. Conover.

2. Ms. Conover agrees to serve a three

(3) day unpaid suspension.

3. Should Ms. Conover fail to execute this

Memorandum and elect to challenge the

proposed suspension, this suspension will be

withdrawn and the matter to be de cided by

either an arbitrator or DOAH hearing officer

will be the matter of all pending discipline

including the two pending terminations.

4. Ms. Conover agrees to remain on

assistance (PIP) until such time as her

teacher Evaluation Score is within the

E ffective range. [ 9 / ]

5. The parties agree that by executing this

Memorandum, this brings all matters

pertaining to presently proposed disciplinary

actions and grievances to a close.

Ms. Conover und erstands that the next step of

p rogressive discipline ca lled for under the

terms of the Instructional Bargaining Unit

Agreement should there be a further

transgression of the rules could be

termination of her employment.

21. Prior to her executing the MOU, Respondent returned to

Booker for the 2015 - 2016 schoo l year as a social studies teacher.

Principal Frost welcomed her back to school during the teacherÓs

planning week in mid - August 2015. Principal Frost continued to

supervise RespondentÓs PIP progress. 10 /

22. Shortly after the students returned for 2015 - 2016

school year, AP Dorn reminded Respondent to take attendance. In

mid - September 2015, while conducting a random review of grades,

AP Dorn emailed Respondent about the lack of grades for all of

her classes, and that her Gradebook had not been set up. I n that

email, AP Dorn asked Respondent to see him. Respondent did not

do so. Just before the mid - quarter gra de deadline, Respondent

input grades back to August 28, 2015, the end of the first week

of classes.

23. Respondent was notified of a Weingarten m eeting

scheduled for September 30, 2015. Based meeting was reschedul ed

for and held on November 9, 2015. During the Weingarten meeting,

Respondent did not recall receiving or responding to AP DornÓs

email about her grades and gradebook . Respondent ackno wledged

her understanding of Ðthe need to get in gradesÑ and that the

administration had previously spoken with her about entering

grades. However, Respondent did not furnish any facts other than

non - answers.

24. A second Weingarten meeting was also held on

November 9, 2015. The second Weingarten meeting sought

information about Respondent sharing her ÐAÑ number and password

with a paraprofessional who worked with her. Respondent admitted

that she gave her ÐAÑ number and password to the

par aprofessiona l, who then input grades into Gradebook.

25. Respondent served the agreed three - day suspension in

December 2015.

26. On February 22, 2016, Superintendent White issued a

certified letter to Respondent. This letter provided that

Respondent had been:

[I]ns ubordinate in performing your assigned

duties as they relate to accurately recording

and the placing of student grades in the

student information system. [W]e have

concluded you have committed the following

offenses among others: misconduct in office,

wi llful neglect of duties and incompetency.

Therefore, . . . I have just cause to

terminate your employment with the Sarasota

County School Board.

27. This February letter was the result of the two

Weingarten h earings that were held on November 9, 2015.

28. On March 8, 2016, the regularly scheduled PLC meeting

for the 6th grade social studies teachers was held. Respondent

did not attend the meeting. Although Respondent was on campus

that day, and initially told the PLC leader that she would be

late, sh e did not attend.

29. Respondent was notified of a Weingarten meeting

scheduled for March 24, 2016. This meeting was rescheduled to

April 6, 2016, to accommodate RespondentÓs request for

representation to be present. The meeting was rescheduled again

an d held on April 12, 2016.

30. The Weingarten meeting was to determine whether

Respondent attended the March 8 PLC meeting, her reason(s) for

missing the PLC meeting, and what Respondent may have discussed

with her PLC members regarding how administration determined

Respondent was not at that PLC meeting. Prior to attending the

Weingarten meeting, Respondent telephoned her PLC leader,

Ms. Scherzer, and asked who had informed the administration of

RespondentÓs absence from the PLC meeting. Ms. Scherzer se nsed

that Respondent was upset that the administration knew Respondent

had missed the meeting. RespondentÓs demeanor was less than

cordial toward Ms. Scherzer.

31. Of the 16 questions p osed to her during the April 12

Weingarten meeting, Respondent answer ed three : 1) her current

position; 2) her duty day at Booker; and 3) her knowledge that

there was a PLC meeting on March 8, 2016. The remaining

Weingarten questions provided Respondent with the opportunity to

explain her PLC absence, yet she declined to answer the

questions, except to say she didnÓt feel comfortable answering

them without representation. There was no testimony that she

advised BookerÓs administration at that time, that she was

represented by a representative or an attorney. RespondentÓs

testimony that she was upset that her paraprofessional had been

called to the f ront office, and that no one bothered to question

Respondent about her absence from the PLC meeting , is not

accurate . Respondent was afforded the opportunity to provide

answer s and choose not to do so.

32. On April 26, 2016, Superintendent White issued another

certified letter to Respondent. This letter provided that

Respondent had been:

[I]nsubordinate in performing your assigned

duties and exercising professional judgement

and integrity. [W]e have concluded you have

committed the following offenses among

others: misconduct in office, willful

neglect of duties and incompetency.

Therefore, . . . I have just cause to

terminate your employment with the Sarasota

County School Board.

33. This April letter was the result of the Weingarten

h earing that was held on April 12, 2016.

34. Deputy Superintendent LempeÓs job is to run the

business operation of Petitioner and he is involved with the

grievance process as the Ðformal leve l one grievance authority.Ñ

He was directly involved with the MOU negotiations, and drafting

of th e Ðlast chance agreement.Ñ

35. As outlined in the CBA, Petitioner utilizes a four - step

progressive discipline structure. One of Deputy Superintendent

Lempe Ós duties involves the grievance process as the Ðformal

level one grievance authority.Ñ He was directly involved wi th

the MOU negotiations, drafting of th e last chance agreement, and

referred to this last chance agreement Ðas step five in our four -

step pr ogressive disciplinary [ sic ] process.Ñ At the hearing ,

Respondent again acknowledged her understanding of the MOU

provision: Ðthat the next step of progressive discipline called

for under the terms of the Instructional Bargaining Unit

Agreement should th ere be a further transgression of the rules

could be termination of her employment.Ñ

RESPONDENTÓS PRIOR DISCIPLINARY HISTORY

36. There was ample testimonial and documentary evidence

presented regarding RespondentÓs disciplinary history. The

following is a summary of the evidence regarding RespondentÓs

disciplinary history:

a. February 24, 2014: Respondent was given a verbal

reprimand 1 1 / for her use of disparaging comments and behaviors

toward students in her class. Respondent did not grieve this

actio n.

b. April 8, 2014: Respondent was given a written

reprimand 12 / for an incident t hat affected BookerÓs FTE (full - time

employees) survey, which directly related to BookerÓs funding for

employees, and another colleague Ó s VAMS (value added model

system) sc ore. Respondent inappropriately retained a student in

her class when the student had been administratively transferred

to and was on another teacherÓs rooster. Respondent did not

grieve this action.

c. October 29, 2014: Superintendent White notified

Re spondent that, acting on Principal FrostÓs recommendation,

Superintendent White would recommend to the school board that

Respondent be suspended for three days without pay. Respondent

had been insubordinate , used inappropriate language , and had

inappropri ate interactions with students.

d. December 1, 2014: Principal Frost recommended

RespondentÓs employment be terminated. Respondent refused to

allow a student back in the classroom after the student had

completed a suspension period.

e. April 6, 2015: Principal Frost placed Respondent on

Ðadministrative leave pending an internal investigation.Ñ A

substitute teacher had found RespondentÓs handwritten note , which

contained derogatory and offensive language regarding certain

students in her class(es). Pr incipal Frost had also entered

RespondentÓs classroom, observed Respondent on the phone, and

heard Respondent use obscenities that could be heard by students.

Following the Weingarten meeting on this matter, Respondent was

reassigned to the Landings, the School BoardÓs administrative

offices , during the course of the investigation.

f. On April 7, 2015, Superintendent White notified

Respondent that, acting on Principal FrostÓs recommendation,

Superintenden t White would recommend to the S chool B oard that

Re spondentÓs employment be terminated.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 1 20.569 , 120.57(1) , 1012.33 , Fla. Stat .

38. The superintendent of the School Board has the

authority to recommend to the School Board that an employee be

terminated from employment. § 1012.27(5), Fla. Stat.

39. Petitioner is responsible for the operation, control,

and supervision of the free public schools in Sarasota County,

Flo rida. 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 .

40 . Petitioner bears the burden of proving 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).

Preponderance of the evidence is evidence that Ðmor e likely than

notÑ tends to prove the proposition set forth by a proponent.

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

41. Respondent is considered an educational employee.

§ 1012.01(2), Fla. Stat.

42. ÐJust causeÑ is the standard of discipline appli ed to

actions involving instructional personnel. Just cause is defined

in section 1012.33(1)(a), in pertinent part , as:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

m isconduct 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

perfo rmance 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.

43. In pertinent part, Florida Administrative Code Rule 6A -

5.056 provides the following:

Just causeÑ means cause that is legally

sufficient. Each of the charges upon which

just cause for a dis missal action against

specified school personnel may be pursued are

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:

* * *

(2) ÐMisconduct in OfficeÑ means one or m ore

of the following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6A - 10.080, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rul e 6A -

10.081, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties.

(3) ÐIncompetencyÑ means the inability,

failure or lack of fitness to discharge the

required duty as a result of inefficiency or

incapacity.

(a) ÐInefficiencyÑ means one or more of the

following:

1. Failure to perform duties prescribed by

law;

2. F ailure to communicate appropriately with

and relate to students;

3. Failure to communicate appropriately with

and relate to colleagues, administrators,

subordinates, or parents;

4. Disorganization of his or her classroom to

such an extent that the heal th, safety or

welfare of the students is diminished; or

5. Excessive absences or tardiness.

(b) ÐIncapacityÑ means one or more of the

following:

1. Lack of emotional stability;

2. Lack of adequate physical ability;

3. Lack of general educational background; or

4. Lack of adequate command of his or her area

of specialization.

(4) ÐGross insubordinationÑ means the

intentional refusal to obey a direct order,

reasonable in nature, and given by and with

proper authority; misfeasance, or malfeasance

as to involve failure in the performance of the

required duties.

(5) ÐWillful neglect of dutyÑ means

intentional or reckless failure to carry out

required duties.

44. In pertinent part, Florida Administrative Code 6A -

10.081 provides:

(1) Florida educ ators shall be guided by the

following ethical principles:

(a) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizenship. Essential to the achievement of

these standards are the freedom to learn and

to teach and the guarantee of equal

opportunity for all.

(b) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(c) Aware of the importance of maintaining

the respect and confidence of oneÓs

colleagues, of students, of parents, and of

othe r members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

(2) Florida educators shall comply with the

following disciplinary principles. Violation

of any of these principles shall subject the

individu al to revocation or suspension of the

individual educatorÓs certificate, or the

other penalties as provided by law.

(a) Obligation to the student requires that

the individual:

1. Shall make reasonable effort to protect

the student from conditions harmf ul to

learning and/or to the studentÓs mental

and/or physical health and/or safety.

2. Shall not unreasonably restrain a student

from independent action in pursuit of

learning.

* * *

4. Shall not intentionally suppress or

distort subject matte r relevant to a

studentÓs academic program.

* * *

6. Shall not intentionally violate or deny a

studentÓs legal rights.

* * *

9. Shall keep in confidence personally

identifiable information obtained in the

course of professional servic e, unless

disclosure serves professional purposes or is

required by law.

45. In pertinent part, s ection 1001.41 provides the

following:

General p owers of district school board. -- The

district school board, after considering

recommendations submitted by th e district

school superintendent, shall exercise the

following general powers:

(1) Determine policies and programs

consistent with state law and rule deemed

necessary by it for the efficient operation

and general improvement of the district

school system .

(2) Adopt rules pursuant to ss. 120.536(1)

and 120.54 to implement the provisions of law

conferring duties upon it to supplement those

prescribed by the State Board of Education

and the Commissioner of Education.

46. Pursuant to section 1001.41, the S chool Board has

adopted Policy 6.27 , wh ich provides in pertinent part:

An effective educational program requires the

services of personnel of integrity, high

ideals, and human understanding. All

employees shall be expected to maintain and

promote these qu alities. The Board shall

also expect all administrative, instructional

and support staff members to adhere to the

Principles of Professional Conduct for the

Education Profession in Florida.

47. The School Board has adopted Policy 6.42 regarding its

abil ity to approve or disapprove job descriptions. The pertinent

part of the School BoardÓs ÐTeacherÑ job description is set forth

in paragraph 5 above, and is incorporated herein.

48. Petitioner satisfied its burden and proved by a

preponderance of the evid ence that Respondent executed the MOU ,

and then committed further transgressions. Having considered all

of the facts set forth above , the undersigned concludes that

termination of employment is appropriate.

RECOMMENDATION

Based on the foregoing Findings o f Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner terminate Respondent's

employment as a classroom teacher for Sarasota County School

Board.

DONE AND ENTERED this 5 th day of January , 201 7 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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 w ith the Clerk of the

Division of Administrative Hearings

this 5 th day of January , 201 7 .

ENDNOTE S

1/ Respondent did not seek an extension of time in which to file

its answer, which was filed on the 37th day following the

issuance of the Administrative C omplaint. There was no ÐAmended

Administrative Co mplaintÑ filed.

2/ Page 1 of Exhibit 57 is not admitted.

3/ Exhibit 81 is an incomplete PRIDE evaluation Ðlong form.Ñ

During the hearing PetitionerÓs counsel indicated Petitioner

would look for the add itional page(s). To date, no additional

pa ge has been filed.

4/ Specifically , B ate - stamped pages 248 and 249.

5/ RespondentÓs attempted reliance on a School BoardÓs 2016 - 2017

Student Progression Plan is a red heron, and not responsive to

RespondentÓs issues as outlined in the Administrative Complaint .

6/ I n each partyÓs exhibits confidential information was noted

( i.e. , student names, social security numbers, etc.). Prior to

submission of this material to a public meeting, each party

should redact c onfidential information.

7 / The asterisks before the numbers delineate Ð Essential

Performance ResponsibilitiesÑ as found in the job description.

No testimony was received as to w hat the phrase actually means.

8 / PLCs may also be known as Collaborative Planning Team s .

9 / RespondentÓs evaluations were in the low effective rang e for

several evaluations.

10 / Respondent was placed on a PIP in December 2014 for classroom

concerns. The PIP continued into the 2015 - 2016 school year.

1 1 / The verbal reprim and set forth the Principles of Professional

Conduct of the Education Profession that were being reinforced by

the memo:

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 safety.

Shall not intentionally expose a student a

student to unnecessary embarrassment or

disparagement.

The educator will seek to exercise the best

professional judgment and integrity.

1 2 / T he written reprimand set forth the Principles of

Professional Conduct of the Education Profession that were being

reinforced by the memo:

Shall maintain honesty in all professional

dealings.

Shall not submit fraudulent information on

any document in connection with professional

activities.

The edu catorÓs primary professional concern

will always be for the student and for the

development of the studentÓs potential. The

educator will therefore strive for

professional growth and will seek to exercise

the best professional judgment and integrity.

Awa re 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.

COPIES FURNISHED:

Arth ur S. Hardy, Esquire

Matthews Eastmoore

Suite 300

1626 Ringling Boulevard

Sarasota, Florida 34236 - 6815

(eServed)

Robert K. Robinson, Esquire

Kirk Pinkerton, P.A.

6th Floor

240 South Pineapple Avenue

Sarasota, Florida 34236

(eServed)

Ronald Angerer, II, Esquire

Law Offices of Archibald J. Thomas, III, P.A.

Suite 255

4651 Salisbury Road

Jacksonville, Florida 32256

(eServed)

Lori White, Superintendent

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231 - 3365

Pam Stewart, Commis sioner of Education

Department of Education

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

(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 wi th the agency that

will issue the Final Order in this case.