18-001931TTS Marion County School Board vs. Richard Collins Status: Closed Recommended Order on Tuesday, January 8, 2019.

Summary: Petitioner had just cause to terminate Respondent's contract where Respondent failed to protect student from conditions harmful to her physical health and safety.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 1931TTS

RICHARD COLLINS,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed hearing was held o n October 16, 2018, in

Ocala, Florida, before Suzanne Van Wyk, an Administrative Law

Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark E. Levitt, Esquire

Allen , Norton & Blue

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Petitioner, Marion County Scho ol Board, had just

cause to terminate Respondent , Richard Collins .

PRELIMINARY STATEMENT

Petitioner sent Respondent a Notice of Recommendation for

Termination of Employment (Notice) on October 17, 2017 . The

Notice informed Respondent that he was being te rminated for

violating Principle of Professional Conduct 6A - 10.081 by failing

to make reasonable efforts to protect a student from conditions

harmful to the studentÓs physical health and safety. On

October 25, 2017, Respondent requested a hearing to conte st the

recommendation for his termination, which was forwarded to the

Division of Administrative Hearings (Division) on April 13, 2018,

for the assignment of an administrative law judge. 1/

At the final hearing, Petitioner introduced Exhibits P2

through P4, P6 through P9, and P11 through P15, which were

admitted in evidence. Petitioner offered the testimony of

Assistant Principal Leona Hunt; N ursing Assistant Cynthia Maurer;

students B.A., B.R., and E.F. ; and Nicholas Carey, an

instructional coach.

Responde nt introduced Exhibits R1 and R3 through R7, which

were admitted in evidence. Respondent testified on his own

behalf and offered the testimony of students S.R., S.C., and A.D.

A one - volume Transcript of the hearing was filed with the

Division on November 2, 2018. On November 9, 2018, Petitioner

filed an Unopposed Motion for Extension of Time to File Post -

h earing Briefs, which was granted, extending the deadline for

filing the parties proposed recommended o rders , to November 26,

2018.

The parties timely fi led Proposed Recommended Orders , which

have been considered by the undersigned in preparation of this

Recommended Order.

Unless otherwise noted, all references to the Florida

Statutes are to the 2017 version.

FINDING S OF FACT

1. Marion County School Board (the Board or Petitioner ), is

the constitutional entity authorized to operate, control, and

supervise the public schools within Marion County. See Art. IX,

§ 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner is

authorized to discipline instructional s taff and other school

employees. See § 1012.22(1)(f), Fla. Stat.

2. Respondent, Richard Collins, has been employed under a

professional services contract with the Board for approximately

20 years.

3 . During the 2017 - 2018 school year, Respondent taught

fourth grade at Greenway Elementary School (Greenway) in Ocala,

Florida.

4 . B.A., S.C., B.R., E.F., S.R., and A.D. were all students

in RespondentÓs classroom. The children were each nine years of

age.

October 2, 2017 Incident

5 . On October 2, 2017, R espondentÓs class was engaged in

reading and language arts assignments in small groups throughout

the classroom. Some students worked at the computer center,

while others sat together at work tables.

6 . Respondent was working directly with one small gro up of

students at a table in the front of the class room.

7 . By all accounts, the classroom was noisy . S ome of the

students were playing loudly, rather than working on their

assignments.

8 . Student B.A. was at a table in the back of the room with

stude nts S.C. and A.D. Rather than attending to their

assignments, the students were playing around on top of the

table. The students had pillows on top of the table and were

taking turns sitting on the pillows and attempting to pull each

other off the table by their ankles.

9 . Respondent noticed students B.A. and S.C. on the table,

and instructed them to sit down. Respondent did not get up from

his table at the front of the classroom to correct the children.

10 . The record does not reflect that the studen ts heard

Respondent tell them to sit down. The students did not sit down.

11 . S.C. pulled B.A. off the table by her ankles and B.A.Ós

head hit the hard tile floor. She began crying.

12 . Respondent neither saw B.A. fall nor heard her crying.

13 . A t hird student reported to Respondent that B.A. was

crying. Respondent also ÐoverheardÑ a student say that B.A.

could not see, or was having trouble seeing, out of one eye.

14 . Rather than seek out B.A. immediately and inquire about

her injury, Respondent instructed everyone in the class to return

to their seats.

15 . After the students returned to their seats, Respondent

asked B.A. what had happened and if she was hurt.

16 . B.A. reported that she fell and, when Respondent

inquired about any injury B.A. sustained, B.A. pointed to the

side of her face.

17 . B.A. had a red mark on her face by her temple. 2/

Respondent saw the mark. Respondent knew B.A. had been on top of

the table, had fallen, and had sustained an injury to her head at

the temple area. R espondent knew that the classroom floor was

hard tile. Respondent had overheard another student say B.A. was

complaining of difficulty with her vision.

18 . Shortly after the incident, RespondentÓs class was

scheduled to leave for recess. Respondent did not call for

another teacher to take his class to recess so he could accompany

B.A. to the clinic. Respondent did not ask another student to

accompany B.A. to the clinic while he took the students to

recess. Instead, Respondent asked B.A. if she wanted t o go to

the clinic or to recess.

19 . B.A.Ós response to this question was a disputed issue.

B.A. testified that she probably told Respondent she was fine.

However, B.A.Ós memory of that day is not reliable. Respondent

testified B.A. stated she wanted t o go to recess.

20 . Shortly thereafter, Respondent sent his class,

including B.A., out to recess.

21 . The recess area is located just outside RespondentÓs

classroom. Respondent followed the students out and kept an eye

on them free - playing in the open g rassy field used for recess.

22 . B.A. approached Respondent shortly before recess ended,

reported that she was not feeling well, and asked if she could

return to the classroom and put her head down. Respondent

allowed her to do so.

23 . Respondent did no t ask any other student to accompany

B.A. to the classroom or remain with her there. Instead,

Respondent stood in the classroom doorway, where he divided his

attention between B.A. , with her head down at her desk, and his

remaining students playing outsid e at recess.

24 . Respondent called the remaining students in a few

minutes early from recess. As the students were coming in, B.A.

began vomiting. Respondent gave B.A. a cloth to clean up with ,

and instructed another student, S.C., to accompany B.A. to the

clinic.

25 . Shortly thereafter, Respondent contacted B.A.Ós

grandmother, Ms. Franklin , 3/ who was substitute teaching at

Greenway that day. Respondent informed Ms. Franklin that he had

sent B.A. to the clinic.

26 . B.A. was treated briefly at the clin ic, then

transported to the hospital by emergency vehicle. B.A. was

diagnosed with a concussion and was out of school the following

day. Under doctorÓs orders, B.A. was not allowed to engage in

any physical activity for 20 days.

School Board Investigatio n

27 . After B.A. was transported to the hospital, Assistant

Principal Leona Hunt identified the students in RespondentÓs

classroom who had witnessed the incident. Ms. Hunt had each

student write his or her own account of the incident.

28 . Ms. Hunt als o instructed Respondent to complete an

accident report regarding the incident.

29 . In the accident report, Respondent described the type

of injury as ÐHit her head,Ñ and listed Ðsit quietlyÑ as the

corrective action taken toward the student. Respondent g ave the

following written description of the incident:

Student [sic] were playing around in reading

center while I was working with other

students in guided reading. Another student

said [B.A.] fell. I had all student [sic] go

to their desk. I spoke wit h them all about

playing around. Then we went outside for

recess and I asked [B.A.] if she was ok and

she said she was fine. Then she felt sick

and came into [sic] lay down. Before I sent

her to the clinic she started throwing up.

30 . Based on her in vestigation, Ms. Hunt referred the

matter to Jaycee Oliver, PetitionerÓs Director of Employee

Relations. Ms. Oliver handles all employee disciplinary matters.

31 . Based on the information received from Ms. Hunt,

Ms. Oliver identified RespondentÓs action s as Ðegregious, Ñ and

referred the matter to PetitionerÓs Chief Investigator, Rose

Cohen, for a more thorough investigation.

32 . Ms. Cohen conducted a full investigation into the

matter. Ms. Cohen interviewed Respondent, the students, the

health clinic assistant, and paraprofessionals at Greenway.

33 . When asked to recount the incident during his interview

with Ms. Cohen, Respondent deferred to his written statement in

the accident report. Respondent was asked, but refused, to give

a written statement detailing the incident during the

investigation.

34 . Ms. Cohen issued an inv estigative report dated

October 10, 2017. The report found that Respondent Ðfailed

students in the most egregious way when he failed to provide

adequate supervision to students in his care.Ñ Based on her

finding, Ms. Cohen recommended RespondentÓs termination.

35 . Ms. Oliver agreed with Ms. CohenÓs recommendation,

which was also agreed to by the School District Superintendent

Heidi Maier. The Board approved RespondentÓs termi nation, which

was signed by Dr. Maier and served on Respondent on October 17,

2017.

Prior Disciplinary History

36 . Following a history of misconduct at other schools,

which resulted in disciplinary action, the Board reassigned

Respondent to Greenway for t he 2017 - 2018 school year to Ðgive

Respondent a fresh start.Ñ

37 . In May 2011, Respondent was reprimanded for

insubordination and disrespect to his administrator in the

presence of other staff and students.

38 . In March 2016, Respondent received a written reprimand

for making inappropriate verbal remarks of a sexual nature to a

colleague.

39 . In March 2017, Respondent was reprimanded for leaving

his prescription medication on an open shelf in his classroom in

plain view of his students. Respondent was wa rned to be

Ðcognizant of the safety and health of students at all times.Ñ

40 . In May 2017, Respondent was suspended for five days

without pay for inappropriate interactions with students.

41 . Just weeks before the incident at issue in this

proceeding, Re spondent was disciplined for gross insubordination

after allowing two students to go to his classroom unattended and

use his keys to access his desk. Respondent had previously been

instructed not to send students to his classroom unattended.

Administrativ e Charges

42 . The Board first charges Respondent with failure to

provide adequate supervision to students in his care, in

violation of Principles of Professional Conduct for the Education

Profession (Principles) 6A - 10.081.

43 . Respondent failed to stop students from Ðplaying around

on the tableÑ during reading centers on October 2, 2017.

Respondent was aware the students were engaged in ÐhorseplayÑ on

top of the table. While Respondent may have asked the students

to sit down, he did not ensure that th ey obeyed, and they were

allowed to continue engaging in risky behavior that proved to be

dangerous.

44 . By all accounts, the classroom atmosphere on October 2,

2017, was loud and chaotic.

45 . Nicholas Carey is an instructional c oach assigned to

assis t Respondent with classroom management. Mr. Carey observed

RespondentÓs classroom before the incident and worked with a

small group of students. Mr. Carey testified, credibly, that the

classroom was so loud on the day of the incident that he could

not he ar the students he was working with at a small table in the

back of the room.

46 . Student E.F. testified that the classroom was so loud

on the day of the incident that she could not focus on her work.

47 . While some students testified that they heard

Res pondent tell B.A. and her friends to get off the table and sit

down, the record does not support a finding that the students at

B.A.Ós table in the back of the room heard RespondentÓs

instruction. The students were so loud that Respondent did not

hear B.A . crying after her fall , and had to be informed by

another student that B.A. fell and was crying. Respondent failed

to maintain order in the classroom and create an environment

conducive to learning.

48 . The Board next charges Respondent with failing to

protect students from conditions harmful to learning and/or to

the studentÓs health and safety. The most significant fact

supporting this charge is that Respondent sent B.A. out to recess

after her fall, rather than sending her for medical attention at

t he clinic. Respondent knew B.A. had fallen, most likely from

the table top where she was playing; had suffered an injury to

her head; and had at least overheard a student state that B.A.

was complaining about difficulty with her vision.

49 . Yet, Respond ent took a nine - year - oldÓs word that she

was ÐfineÑ and wanted to go to recess. What child would choose

the clinic over recess with her friends? Respondent was

responsible for B.A.Ós safety, not for satisfying her desire to

play with her friends.

Insubor dination

50 . Lastly, the Board charges Respondent with

insubordination and falsifying a document in connection with his

accident report and his refusal to make a further written

statement during the Board Ós investigation of the incident. 4/

The charging document reads, as follows:

Respondent was asked to provide a written

statement. His written statement stated that

the student was playing around, and failed to

disclose that the injury was the result of

horseplay by students. Although Respondent

seemed to later acknowledge the statement

provided was not truthful, or at least

misrepresented the true facts, Respondent was

asked to provide a subsequent statement

correcting the information and he refused to

do so.

51 . Petitioner stated in its Proposed Reco mmended Order,

It is undisputed that RespondentÓs written

statement was not completely truthful, or at

least misrepresented the true facts of the

incident. Respondent, however, refused to

provide a subsequent statement correcting the

information. (citat ions omitted).

52 . On the contrary, whether the statements in the accident

report were true and complete was an issue in dispute. The only

evidence that Respondent was concerned that his accident report

was not accurate was contained in Ms. CohenÓs inve stigative

report. However, the statements contained in the report are

hearsay which was not corroborated by any non - hearsay evidence.

At the final hearing, Respondent stood by his accident report

stating, ÐI wrote exactly what happened.Ñ

53 . As to Pet itionerÓs allegation that Respondent was

insubordinate in refusing to make another statement during

Ms. CohenÓs investigation, the record shows Respondent relied

upon the advice of his union representative to defer to his

accident report.

54 . Petitioner established no facts on which to base a

finding that RespondentÓs refusal to provide a further statement

during the investigation constituted insubordination.

CONCLUSIONS OF LAW

55 . The Division has jurisdiction over the subject matter

of, and parties to, this case, pursuant to section s 1012.33(6),

120.569 , and 120.57(1), Florida Statutes (2018).

56 . Petitioner is a duly constituted district school board

with the authority to suspend, dismiss, or return to annual

contract, members of the instructional sta ff and other school

employees of Marion County, Florida, pursuant to section

1012.22(1)(f).

57 . Respondent is an instructional employee of the school

board pursuant to an annual contract.

58 . Petitioner seeks to terminate RespondentÓs employment,

and has the burden of proving the allegations set forth in its

charging document by a preponderance of the evidence, as opposed

to the more stringent standard of clear and convincing evidence

applicable to the loss of a license or certification. Cropsey v.

Sch. Bd. of Manatee Cnty. , 19 So. 3d 351 (Fla. 2d DCA 2009), rev.

denied , 29 So. 3d 1118 (Fla. 2010); Cisneros v. Sch. Bd. of

Miami - Dade Cnty. , 990 So. 2d 1179 (Fla. 3d DCA 2008).

59 . Florida Administrative Code Rule 6A - 5.056 sets forth

criteria for suspensio n and dismissal of instructional personnel.

Subsection (2) defines Misconduct in Office in pertinent part, as

follows:

(2) ÒMisconduct in OfficeÓ means one or more

of the following:

* * *

(b) A violation of the Principles of

Professional Conduct for t he Education

Profession in Florida as adopted in Rule 6A -

10.081, F.A.C. [the Principles.]

The Principles

60 . Petitioner alleges Respondent violated the following

Principle set forth in Florida Adminis trative Code Rule 6A -

10.081(2)(b )1 . :

(2) Florida ed ucators shall comply with the

following disciplinary principles. Violation

of any of the principles shall subject the

individual to revocation or suspension of the

individual educatorÓs certificate, or other

penalties provided by law.

* * *

(b) Obligat ion to the student requires that

the individual:

1. 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.

61 . Based on the numerous Findings of Fact herein,

Petitioner proved by a preponderance of the evidence that

Respondent violated the cited Principle; thus , Petitioner proved

that Respondent violated rule 6A - 5.056(1)(b).

62 . As to PetitionerÓs charge of insubordination against

Respondent, Petitio ner did not meet its burden of proof.

63 . Despite failure of proof as to the charge of

insubordination, Petitioner had just cause to terminate

Respondent. Termination was appropriate for RespondentÓs failure

to appropriately supervise his students and p rotect B.A. from

conditions harmful to her physical health and safety. Even if

this incident alone was not just cause for termination, the

incident , together with RespondentÓs history of discipline ,

constitutes just cause for termination.

RECOMMENDATION

B ased on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Marion County School Board enter

a final order upholding its termination of Respondent, Richard

Collins, from his written contract.

DONE AND ENTERED this 8th day of January , 2019 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 967 5

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of January , 2019 .

ENDNOTE S

1/ The record does not reflect the reason for the delay in

forwarding PetitionerÓs hearing request to the Division.

2/ The record does not reflect whether the mark appeared on the

left or right side of B.A.Ós face.

3/ Ms. FranklinÓs first name does not appear in the record.

4/ In its Proposed Conclusions of Law, Petitioner did not

address its all egation of insubordination. It is unclear

whether Petitioner abandoned this allegation. The undersigned

includes findings and conclusions on this issue in an abundance

of caution.

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Su ite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

(eServed)

Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

Suite 100

1477 West Fairbanks Avenue

Winter Park, Florida 32789

(eServed)

Paul Gibbs, Esquire

Marion County School Board

512 South east Third Street

Ocala, Florida 34471 - 2212

(eServed)

Heidi Maier, Ed.D.

Superintendent

Marion County Public Schools

512 Southeast Third Street

Ocala, Florida 34471

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Richard Corcoran , Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTI ONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.