18-004169TTS Polk County School Board vs. Holly Seckinger Status: Closed Recommended Order on Wednesday, February 27, 2019.

Summary: School Board established that Respondent was guilty of gross insubordination and willful neglect of duties. Termination recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 4169TTS

HOLLY SECKINGER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge D. R. Alex ander conducted a hearing

in this case in Bartow, Florida, on January 9, 2019.

APPEARANCES

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

Boswell and Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830 - 4620

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 - 1526

STATEMENT OF THE ISSUE

The issue is w hether just cause exists for Petitioner, Polk

County School Board (School Board), to terminate Respondent's

employment as a teacher.

PRELIMINARY STATEMENT

By letter dated April 19, 2018, the School Board informed

Respondent, a classroom teacher, that bec ause of her "serious

misconduct," she was suspended, with pay, effective immediately,

and that a recommendation would be made at the School Board's

meeting on May 15, 2018, to terminate her effective the following

day. Respondent timely requested a hearin g, and the matter was

referred by the School Board to the Division of Administrative

Hearings r equesting that a formal hearing be conducted.

At the final hearing, the School Board presented the

testimony of six witnesses. School Board Exhibits 1 through 12

and 14 through 16 were accepted in evidence. Respondent

testified on her own behalf. Respondent's Exhibits 1 and 2 were

accepted in evidence.

A one - volume Transcript of the hearing has been prepared.

The parties timely submitted proposed recommend ed order s (PRO s ),

which h ave been considered.

FINDING S OF FACT

A. Background

1. The School Board is charged with the duty to operate,

control, and supervise public schools in Polk County. This

includes the power to discipline classroom teachers. See

§§ 1012.22(1)(f) and 1012.33, Fla. Stat. (2018)

2 . Respondent is a classroom teacher and is certified in

elementary education, exceptional student education (ESE), K - 12,

and English for Speakers for Other Languages. She holds a

professional services contract pursuant to section 1012.33.

Re spondent began working for the School Board 23 years ago as a

paraprofessional. After receiving her college degree in 2009,

she moved into a teaching position. For her first 21 years of

employment as a paraprofes sional and teacher, she received no

disciplinary actions or negative comments about her job

performance.

3. On January 18, 2018, Respondent began working as a

classroom teacher at Oscar J. Pope Elementary School (Oscar J.

Pope). The school has nearly 500 students, of which

approximately 100 receive ESE services. Ms. Griffin is the

principal, while Mr. Huntley is the assistant principal.

4. Before transferring to Oscar J. Pope, Respondent's

previous assignment was teaching ESE students at Auburndale

Ce ntral Elementary School (Auburndale Central), designated as a

failing school in school year 2017 - 2018. A failing school

requires that the instructional staff spend extra time at the

school or request a transfer. Because of personal family

commitments, Re spondent was unable to meet the extra time

commitments and requested a transfer, which was approved in

January 2018.

5. After the transfer was approved, Respondent was assigned

initially as an inclusion teacher working with grades four and

five with anoth er inclusion teacher, Ms. King. Sch. Bd. Ex. 14.

Both teachers were expected to work not only with ESE students,

but also low - performing students. Except for her planning

periods, resource periods, and a 25 - minute lunch hour, Respondent

was expected to be in the classroom throughout the day. Being in

the classroom is especially important for an ESE teacher, as

ESE students need more support than mainstream students. A

classroom schedule was established initially for the period

between January 29 and February 23, 2018, specifying the days and

times that Respondent would be working with students in specific

classes. Id. After this schedule ended in late February,

Respondent was assigned to grade four only.

6. Respondent shared a "not very big office" with Ms. King.

There was no wall or partition separating the desks of the two

teachers, so each was "pretty aware of whatever the other was

doing in that space." The office was located between two

resource classrooms in the new wing of the school. A gl ass

window between one resource room and the office enabled a person

in the classroom to look into the office.

7. Another inclusion teacher, Ms. Bailie, was located in an

office adjacent to Respondent's office. The two offices are

separated by a window and wall. The quickest way for Ms. Bailie

to get to her classroom was to walk through Respondent's office.

When the lights were off in Respondent's office, she assumed both

Respondent and Ms. King were in the classroom and she would use

the shortcut to get to her classroom.

8. A door near Respondent's office opened to the parking

lot and was to be locked at all times. Because of heightened

security concerns that were raised after the Parkland shooting on

February 14, 2018, except before or after regu lar school hours,

school personnel were instructed not to use the side door and to

always enter the school through the front entrance. Also,

visitors are required to enter the school through the front

entrance so that they can be cleared and given a visit or's pass.

If a teacher observes a visitor without a badge, the teacher is

instructed to immediately report it to the administration. After

the new security procedures were implemented, they were

communicated to faculty and staff by emails and at meeting s and

planning sessions throughout the remainder of the school year.

9. The Oscar J. Pope staff handbook provides that "staff

should not use cellular phones during instructional time and team

meetings. This includes text messaging, 'alarms,' etc. Phon es

should not be visible during the day unless approved by the

administration." Sch. Bd. Ex. 15. The handbook does not

specifically prohibit the use of cell phones in a teacher's

office, so long as students are not present. All teachers have a

digital d evice issued by the school, which is to be used as a

timer, or in the event of an emergency, to contact the

administration.

10. Although the school used an ESE sign - in log to verify

when a teacher entered and departed a classroom, this requirement

was n ot implemented until sometime in March 2018. No logs were

presented in this case to support any charges.

11. A Collective Bargaining Agreement (CBA) has been

executed by the School Board and the Polk Education Association,

Inc. Article 4.4 - 1 of the CBA provides for progressive

discipline for teachers, starting with a verbal warning and

escalating up through termination. Progressive discipline is

administered in the following four steps: (1) verbal warning,

(2) written warning, (3) suspension without pa y for up to five

days, and (4) termination. Sch. Bd. Ex. 16.

B. The Charges

12. The School Board's letter identifies five charges, some

extremely broad, which occurred in the spring of 2018 and form

the bases for the proposed termination of Responden t:

(a) On February 9, 2018, Ms. Griffin met

with you to discuss the expectation that your

lesson plans would be complete by the Sunday

of each week and that you were to follow your

daily schedule to ensure that you were in the

classrooms to service your a ssigned students.

During this conference, it was also brought

to your attention that you had been observed

on your cell phone during the day and that

cell phone use was only permitted during your

lunch break or in the case of emergency, of

which Administr ation would be made aware.

(b) On March 1, 2018, a conference was held

with you and Ms. Griffin brought to your

attention that you had again been observed on

your cell phone and were not following your

daily schedule.

(c) It was reported to Ms. Griffin on

March 7, 2018, by her secretary and a service

technician at the school that they had

entered the inclusion teacher office area to

find you asleep. They indicated that after a

short period of time an alarm that had been

set on your cell phone went of f and awakened

you. Another staff member had also reported

to Ms. Griffin on another occasion that you

were witnessed in the office area, with the

lights off and on your cell phone, when you

were scheduled to be in the classroom

servicing students.

(d) On March 22, 2018, you were again found

sleeping in your office by another staff

member.

(e) On April 3, 2018, Ms. Griffin met with

you after she learned that you had allowed a

visitor into your office area, at the time

another staff member was present, without

requiring the visitor to be cleared through

the front office. Ms. Griffin reminded you

of the importance of school safety and that

your actions could have caused a risk to the

school, staff, and students.

Sch. Bd. Ex. 8. The charges are based ma inly on observations

made by other teachers, Mr. Huntley, and the school staff. Even

though many of the underlying observations which support the

charges in items (a) and (b) do not have a specific date and

time, all occurred in January, February, or Marc h 2018.

13. The termination letter also notes that while teaching

at Auburndale Central in school year 2016 - 2017 and the first half

of school year 2017 - 2018, Respondent received three progressive

steps of disciplinary action. On May 25, 2017, she recei ved a

Verbal Warning (Step I) for failing to enter grades and not

completing her Individualized Education Plans in a timely manner;

on October 11, 2017, she received a Written Reprimand (Step II)

for failing to post grades in a timely manner and not comple ting

weekly lesson plans; and on December 18, 2017, 1/ she was issued a

three - day suspension without pay (Step III) for failure to post

grades in a timely manner and not completing weekly lesson plans.

14. Respondent did not contest or grieve any discipl inary

actions taken at Auburndale Central. Therefore, when she began

teaching at Oscar J. Pope in January 2018, Respondent already had

been subject to Steps I, II, and III of progressive discipline,

and she was on notice that further disciplinary action c ould lead

to her termination.

15. Although she did not contest the progressive discipline

steps, Ms. Seckinger described a series of personal problems in

her life while teaching at Auburndale Central in school years

2016 - 2017 and the first half of 2017 - 20 18, which she contends

played a role in her being disciplined. Her 25 - year marriage had

just ended in a divorce, she was caring for her father who had

dementia and Parkinson's Disease, and she began a relationship

with a man who she says physically and me ntally abused her on a

daily basis. She also was jailed for 18 days in late

December 2017 for domestic violence charges made by the man who

was abusing her. The charges were later dismissed. After the

charges were dropped, Respondent was transferred to Oscar J. Pope

on January 17, 2018, to get a fresh start.

a. Meeting on February 9, 2018

16. In early February 2018, Ms. Griffin became concerned

that Respondent was not in the classroom when scheduled, her

lesson plans were not being completed on a timely basis, and she

was using her cell phone in violation of school policy. On

February 9, 2018, Ms. Griffin, Mr. Huntley, and Respondent met to

discuss these concerns. Mr. Huntley prepared a comprehensive

written summary of the meeting. Sch. Bd. Ex. 10.

17. At the meeting, Respondent was told by Ms. Griffin that

her lesson plans must be completed by Sunday of each week and

that she must follow the daily schedule to ensure that she was in

the classrooms to service the assigned students. Ms. Griffi n

emphasized that she wanted Respondent in the classroom, not in

her office. Respondent was told to notify the principal if she

was not in the classroom per her schedule. Finally, Respondent

was directed to "stay off phones unless [she] has an emergency

and have cleared it with [the principal] and/or Huntley." There

is no evidence that during the meeting, Ms. Seckinger requested

specific instructions on when and how she could use her cell

phone, and she did not offer a satisfactory explanation regarding

the concern that she was not in her classroom when scheduled.

18. At hearing, Respondent pointed out that during her

first week at Oscar J. Pope, she was supposed to "shadow"

Ms. King to see what Ms. King did and to familiarize herself with

the stude nts. Unfortunately, Ms. King was on sick leave all that

week, so Respondent's daily schedule with Ms. King was delayed.

A regular schedule for splitting duties with Ms. King was

established on January 29, 2018, and remained in effect until

February 23, 2 018.

19. While not specifically asserting that Ms. Griffin's

criticisms were unfounded, at hearing Respondent pointed out that

at the time of the conference, a fixed schedule had only been in

place for a week, she had to rotate through three classrooms in

two different buildings throughout the day, and she was never

told prior to the conference that classroom attendance was a

concern. Respondent informed the administrators that she would

meet with Ms. King to formulate better scheduling plans.

b. March 1, 2018 , Conference

20. Because of continued concerns that Respondent was not

in the classroom when scheduled and she was continuing to use her

cell phone in violation of school policy, Ms. Griffin conducted a

second conference with Respondent on March 1 , 2018. Mr. Huntley

also attended the conference and prepared contemporaneous notes

of the meeting. Sch. Bd. Ex. 11.

21. Respondent again was told to be in the classroom when

scheduled, be on time, remain in the classroom the entire

schedule, and "sta y off your phone, and do what's expected."

Ms. Griffin warned her, "We can't have this conversation again."

Although improper cell phone usage was a major concern, there is

no evidence that Respondent asked Ms. Griffin or Mr. Huntley if

her understandin g of the cell phone policy was correct, or

whether her usage complied with the policy. Similarly, even

though her classroom attendance was a major concern, Respondent

did not offer any reasonable explanation as to why she was not in

the classroom when sch eduled or assert that Ms. Griffin's

concerns were unfounded. Except when she was on sick leave,

there is no evidence that Respondent ever contacted Ms. Griffin

to advise that she would not be in her classroom when scheduled.

22. Without giving specific d ates or times, Ms. King

testified that "there would be times [Respondent] would still be

in her office during the time she should have been in a

classroom," and "times" when she did not know where Respondent

was. During school hours, Ms. King also observe d Respondent on

her cell phone in the office either conversing with someone she

knew or texting. According to Ms. King, some of this cell phone

usage occurred when she knew that Respondent should have been in

the classroom. However, students were never p resent in

Respondent's office when this occurred.

23. Without giving specific dates or times, Ms. Bailie, who

occupied an adjacent office, heard Respondent engaging in "cell

phone conversations with people." "There were times when they

were with gentle men and it was obvious that they were getting to

know each other, making dates and arranging to see each other to

meet, that kind of thing." Ms. Bailie added that she knew when

Respondent was not in the classroom when she was supposed to be

because she co uld hear music and phone conversations coming from

Respondent's office.

24. Once, while administering a writing test, Ms. Bailie

had to go to Respondent's office to remind her to keep her voice

down while on a cell phone call because it was disturbing her

students.

25. Not surprisingly, Ms. King and Ms. Bailie were unable

to provide specific dates and times when they observed Respondent

on her cell phone or when she was not in the classroom. This is

because there is no requirement that instructional staf f keep a

written log of every time they observe a colleague doing

something that they believe may be a violation of school policy.

The testimony of Ms. King and Ms. Bailie is persuasive and has

been credited.

26. On March 15, 2018, Respondent administer ed a mock test

to her class, which was intended to replicate the atmosphere of

the actual test. She was assisted by a paraprofessional,

Ms. Thompson. Instead of assisting the students during the test,

Respondent sat next to a single student with her cell phone out

and looking at it the entire period. The incident was reported

by Ms. Thompson to the school administration.

27. According to Respondent, she understood that she could

use her cell phone when she was in her office with no student

contac t. She considered lunchtime and planning time as "her

time," and she could use "her time" to "take care of my personal

business." Other usage was "strictly for the alarms to move

between the classes and work e - mails," as she had to change

classrooms up t o 11 times per day.

28. Ms. Bail i e had a somewhat similar understanding of when

cell phones could be used. She testified that teacher s can use

their cell phone s if they are in their office s without students.

On the other hand, Ms. King testified that teachers were "only

supposed to use [cell phones] during maybe our lunch [hour] or

before and after school, not during school hours."

29. During a formal observation by Mr. Huntley in late

March, Respondent kept her cell phone on the table while

instructi ng the students. The alarm function (timer) on the cell

phone was used as an aid to let her know when to end the class.

Mr. Huntley said nothing at the time, but he raised the issue

during the conference on April 3, 2018.

30. Mr. Huntley testified tha t starting on February 1,

2018, and continuing into March, he taught writing to

Respondent's fourth grade class. He noted that Respondent was

supposed to be in the classroom, but "more than once" she was

late, or she would leave the classroom early. He a cknowledged,

however, that he never spoke with Respondent about her

attendance, and he admitted he did not know if she was working in

another classroom during part of the time he was teaching her

class. In any event, his concerns about her classroom atten dance

were expressed to Ms. Griffin and discussed at the conference.

c. March 7, 2018 , Incident

31. The School Board alleges that on March 7, 2018, the

principal's secretary, Msibutino, and a service technician

entered Respondent's office and found h er asleep. This charge

includes a second allegation that "another staff member had also

reported to Ms. Griffin on another occasion that you were

witnessed in the office area, with the lights off and on your

cell phone, when you were scheduled to be in th e classroom

servicing students."

32. Respondent arrived in her classroom on March 7, 2018,

around 8:00 a.m. and says she was not feeling good. After the

class ended around 8:45 a.m., she began feeling "worse," so at

8:55 a.m., she sent Ms. Griffin an e mail stating, "I'm feeling

really bad may I please go home?" Resp. Ex. 1. Later that

morning, the request was approved.

33. Between 9:45 a.m. and 10:00 a.m., Msibutino and a

service technician entered Respondent's office to repair a

printer. The lights were turned off and Respondent was at her

desk with her head down and asleep. Not wanting to embarrass

Respondent, Msibutino kicked the door "pretty hard" before

entering the room but Respondent did not stir. After a short

period of time, they observed an alarm on Respondent's cell phone

go off, which awakened her.

34. Respondent says she heard the two enter her office and

knew they were not there to see her, so she stayed at her desk

with her head down. Although she denied that she was sle eping,

this assertion has been rejected. Both Ms. Griffin and

Msibutino testified that Respondent submitted the email

requesting permission to go home after she was caught sleeping in

order to justify her conduct. Both were mistaken, however, as

Respondent's Exhibit 1 shows clearly that the email was sent to

Ms. Griffin an hour before the incident.

35. Ms. Bailie testified that there were "several times"

when she walked through Respondent's office during the day to get

to her classroom and s he found the lights off, the door closed,

and Respondent at her desk with her head down and asleep.

d. Sleeping in Office on March 22, 2018

36. On March 22, 2018, the School Board alleges Respondent

was observed sleeping in her office by "another staff member."

According to Ms. King, she returned to her office during lunch

hour and observed the lights off and Respondent asleep at her

desk. After about ten minutes, Respondent woke up.

37. March 22 was "field day," when students participate in

vario us athletic events, and teachers assist the coaches who

supervise the events. Respondent was assigned to help a coach in

the 50 - yard dash, while Ms. King worked the water station.

Except for lunch hour, both teachers were not in their office.

Because no classes were being taught that day, Respondent's

"extended" lunch hour was at least "an hour," and she was not

scheduled to return to field day activities until around

1:45 p.m. Respondent decided to order a pizza from a local

restaurant, which was to be delivered around 12:55 p.m. at the

school's front entrance. At 12:42 p.m., Respondent sent an email

to the principal's secretary requesting that she be contacted

when her pizza was delivered. Resp. Ex. 2.

38. Respondent denies that Ms. King obse rved her in her

office sleeping that day, because it would have been during lunch

hour, and she "never put [her] head down on the desk or was

sleeping or anything in there." This assertion is directly at

odds with the testimony of Msibutino, Ms. Baili e, and

Ms. King and has been rejected. Even though she was sleeping for

a few minutes, Respondent returned to her field day assignment at

1:45 p.m.

e. Unauthorized Visitor in Office on April 3, 2018

39. The School Board alleges that on April 3, 201 8,

Respondent allowed a visitor into her office area without

requiring the visitor to be cleared through the front office and

given a visitor badge to wear.

40. On April 3, 2018, Ms. Bailie observed Respondent bring

"a gentleman through [the outside doo r]," show him her classroom,

show him Ms. Buretti's classroom, and introduce him to the other

teachers. Contrary to school policy, the male did not have a

visitor's badge. By then, teachers had been told "numerous

times" that anyone entering the school s hould have a visitor's

badge. No students were present at the time.

41. Ms. King also confirmed this incident. She related

that while sitting at her desk eating lunch, the door to the

parking lot opened and two persons entered the room. One was

Respo ndent, while the other was a male. He did not have a

visitor's badge. Respondent introduced the man to Ms. King, and

he then left the building a few minutes later.

42. Ms. Griffin learned about the incident the same day and

met with Respondent that afte rnoon. When Ms. Griffin asked

Respondent about the incident, Respondent initially denied that a

visitor was in her office. After Ms. Griffin said she would

produce witnesses to the incident, Respondent admitted that a

visitor had entered the building thr ough the side door.

Respondent told Ms. Griffin she was not aware of the policy,

apologized, and promised that it would not occur again.

43. At hearing, Respondent said her friend, Michael, had

brought her lunch. After the two ate lunch on benches out side

her office in the parking lot, he asked to see her office, so the

two entered the building through the side door. According to

Respondent, he went into the classroom, but not her office, and

then departed after "two minutes at the most." She denied lying

to the principal about the incident, saying she was accused of

taking Michael into the classroom and office, but, parsing words,

says she was denying only that he had entered her office.

Despite widespread dissemination of the security protocol,

Res pondent assumed it was okay for Michael to enter the building

without a visitor badge when there were no students present.

This assertion is not credible.

44. Ms. Bailie described another occasion (before the

April 3 incident) when Respondent's son came to pick her up at

school, and, while there, he came through the side door to use

the restroom. However, this charge is not in the termination

letter and has not been considered.

C. The Aftermath

45. After the conference on April 3, Ms. Griffin drafted a

letter to the superintendent requesting that Respondent be

terminated because of "an ongoing continuous pattern of

unprofessional, inappropriate and disruptive behavior being

displayed by [Respondent]." Sch. Bd. Ex. 7. She added that

since February 9, 2018, there "continued to be ongoing problems

with this employee which [I] now deem to be insubordinate in

nature." Id. Based on these considerations, Ms. Griffin

concluded that Respondent is either "unwilling, incapable, or

incompetent in her ability t o make effective changes" and that

she could not continue to be an effective teacher at her school.

The School Board's termination letter followed on April 19, 2018.

CONCLUSIONS OF LAW

46. This is a disciplinary proceeding in which the School

Board see ks to terminate Respondent from her teaching position.

47. Respondent is a classroom teacher and her employment

with the School Board is governed by an instructional staff

contract. §§ 1012.01(2)(a) and 1012.33, Fla. Stat. The terms of

her employment ar e also governed by the CBA.

48. The School Board is authorized to suspend or dismiss

instructional personnel pursuant to sections 1012.22(1)(f),

1012.33(1)(f), and 1012.33(6)(a), but only for just cause.

49. To terminate Respondent, the School Board bears the

burden of proving by a preponderance of the evidence that

Respondent committed the serious misconduct alleged, and that the

violations constitute just cause for dismissal. Cropsey v. Sch .

Bd. of Manatee C nty. , 19 So. 3d 351, 355 (Fla. 2nd DCA 20 09).

50. "Just cause" is defined as including "the following

instances, as defined by rule of the State Board of Education:

immorality, misconduct in office, incompetency, gross

insubordination, [or] willful neglect of duty." § 1012.33(1)(a),

Fla. Sta t.

51. The State Board of Education has adopted Florida

Administrative Code Rule 6A - 5.056 (which replaced and amended

former rule 6B - 4.009) setting forth instances of "just cause" to

suspend or dismiss specified school personnel. The rule defines

"just c ause" as "cause that is legally sufficient" and provides

the following definitions:

(2) "Misconduct in Office" means one or more

of the following:

* * *

(d) Behavior that disrupts the student's

learning environment; or

(e) Behavior that r educes the teacher's

ability or his colleagues' ability to

effectively perform duties.

* * *

(4) "Gross insubordination" means the

intentional refusal to obey a direct order,

reasonable in nature, and given by and with

proper authority; misf easance, or malfeasance

as to involve failure in the performance of

the required duties.

(5) "Willful neglect of duty" means

intentional or reckless failure to carry out

required duties.

52. In its PRO, the School Board contends that just cause

exist s to terminate Ms. Seckinger because her actions constitute

gross insubordination and willful neglect of duties within the

meaning of the rule.

53. To constitute gross insubordination, a teacher's

conduct must be more than an isolated incident of refusi ng to

comply with an order. Rather, such conduct must be on a constant

or continuing basis. Smith v. Sch. Bd. of Leon Cnty. , 405 So. 2d

183, 185 (Fla. 1st DCA 1981). "Constant" has been defined as

continually recurring and persistent. Rutan v. Pasco Cn ty. Sch.

Bd. , 435 So. 2d 399, 400 (Fla. 2d DCA 1983). A repeated failure

to comply with a direct order "is a tacit refusal to comply with

[a directive]." Dolega v. Sch. Bd. of Miami - Dade Cnty . ,

840 So. 2d 445, 446 (Fla. 3d DCA 2003).

54. In mee tings conducted on February 9 and March 1, 2018,

Respondent was told by the principal to "stay off the phone"

unless it was an emergency. While the school policy offers

Respondent some flexibility in using a cell phone in her office

when no students are p resent, the more persuasive evidence

supports a conclusion that Respondent exhibited a constant and

recurring pattern of using her cell phone for personal matters,

even when she was supposed to be in class. This conduct

constitutes gross in subordination i n that she failed to comply

with at least two direct orders, reasonable in nature, given by

proper authority.

55. Respondent also was instructed by Ms. Griffin to be in

the classroom when scheduled, and to notify her if she was going

to be absent. Exce pt when taking sick leave, there is no

evidence that Ms. Seckinger ever notified Ms. Griffin that she

would not be in her classroom. Testimony by Ms. King and

Ms. Bailie persuasively established that on numerous occasions

Respondent was not in the cl assroom when scheduled, to the extent

they reported her absence to the principal. Her continued

absence caused disruption to the learning environment of the

ESE students, who require more support than mainstream students.

Such conduct constitutes gross insubordination in that she failed

to comply with at least two direct orders, reasonable in nature,

given by proper authority. Fla. Admin. Code R. 6A - 5.056(4).

56. The word "willful" implies that the teacher must

intentionally refuse to comply with a re asonable and lawful

order. Even though she never overtly refused to comply with an

order, her repeated failure to be in the classroom when

scheduled, and to limit her cell phone usage, is a tacit refusal

to comply with Ms. Griffin's directives. Dolega , s upra . The

evidence supports a conclusion that by repeatedly failing to

carry out her duties, Respondent's conduct constitutes a willful

neglect of duties. Fla. Admin. Code R. 6A - 5.056(5).

57. Finally, Respondent admits that she violated school

policy by allowing a visitor to access the building without first

being cleared at the front entrance and wearing a visitor's

badge.

58. The charges of gross insubordination and willful

neglect of duties are supported in this case by a preponderance

of the evidenc e and justify Respondent's termination.

59. While termination is a harsh penalty, it is noted that

during the preceding 12 months, Respondent was disciplined three

times, including being suspended for three days, without pay, for

various infractions. T herefore, she was on notice that any

further misconduct could result in termination. Under these

circumstances, it is somewhat surprising that Respondent did not

walk softly, follow all directions given by superiors, and, at a

minimum, ask for instruction s on how to comply with school

protocol and satisfy Ms. Griffin's concerns.

RECOMMENDATION

Based on the foregoing Findings of Fac t and Conclusions of

Law, it is

RECOMMENDED that the Polk County School Board enter a final

order terminating Respondent's em ployment as a teacher for gross

insubordination and willful neglect of duties.

DONE AND ENTERED this 27 th day of February , 2019 , in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27 th day of February , 2 019 .

ENDNOTE

1/ Although the termination letter states that the three - day

suspension was imposed by a letter dated July 28, 2017, School

Board Exhibit 6 indicates that the discipline was imposed by

letter dated December 18, 2017, and the three - day susp ension was

served on January 9 through 11, 2018.

COPIES FURNISHED:

Donald H. Wilson, Jr., Esquire

Boswell and Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830 - 4620

(eServed)

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29 605 U.S. Highway 19 North

Clearwater, Florida 33761

(eServed)

Jacqueline M. Byrd, Superintendent

Polk County School Board

1915 South Floral Avenue

Post Office Box 391

Bartow, Florida 33831

Richard Corcoran, Commissioner of Education

Department of Educ ation

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 with the agency that

will issue the Final Or der in this case.