18-006338TTS Lake County School Board vs. Cara Sanderlin Status: Closed Recommended Order on Friday, March 22, 2019.

Summary: The preponderance of the evidence failed to demonstrate that Ms. Sanderlin violated any of the School Board's rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 6338TTS

CARA SANDERLIN,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on

January 15, 2019, in Tavares, Florida, before Garnett W.

Chisenhall, a duly designated Administrative Law Judge of the

Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: Stephen W. Johnson, Esquire

Elizabeth A. Tur ner, Esquire

Johnson Turner , PLLC

215 North 2nd Street

Leesburg, Florida 34748

For Respondent: Mitchell L. Davis, Esquire

Smothers Law Firm, P.A.

523 Wekiva Commons Circle

Apopka, Florida 32712

STATEMENT OF THE ISSUE

Whether Petitioner, Lake County Sc hool Board (Ðthe School

BoardÑ), ha s just cause to terminate Respondent, Cara Sanderlin,

for the reasons specified in the agency action letter, dated

November 13, 2018.

PRELIMINARY STATEMENT

The Superintendent of Schools for Lake County (Ðthe

Superintenden tÑ) notified Ms. Sanderlin, via a November 13, 2018,

letter, that the Superintendent would be recommending that the

School Board terminate Ms. Sanderlin from her teaching position.

This proposed action resulted from an investigation indicating

that Ms. Sa nderlin had Ðused a water bottle to shape the behavior

of a disabled student by squirting him.Ñ According to the

letter, the aforementioned allegation amounted to Ðmisconduct in

officeÑ in violation of Florida Administrative Code Rule 6A -

5.056(2) and Ðinc ompetencyÑ in violation of rule 6A - 5.056(3).

The letter further stated that Ms. SanderlinÓs alleged conduct

amounted to a violation of Florida Administrative Code

R ule 6A - 10.081(1)(b), (1)(c), and (2)(a).

Ms. Sanderlin responded by requesting a formal

administrative hearing, and the Superintendent referred this

matter to DOAH on November 28, 2019.

Via a Notice of Hearing issued on December 12, 2018, the

undersigned scheduled the final hearing to occur in Tavares,

Florida, on January 15, 2019.

The fina l hearing commenced as scheduled and was completed

that day. Ms. Sanderlin testified on her own behalf and

presented testimony from Stephanie Henry, Charlene Hochreiter,

and Erin Shropshire. The School Board presented testimony from

Laine Obando, Danelle Crinion, Carol Phelps, Abdias Rodriguez,

Ms. Sanderlin, and David Meyers.

The School BoardÓs Exhibits 1 through 7 and Ms. SanderlinÓs

Exhibit 1 were accepted into evidence.

The one - volume Transcript of the final hearing was filed on

January 31, 2019. Both parties filed timely proposed recommended

orders on February 20, 2019. Those proposed recommended orders

were considered in the preparation of this Recommended Order.

FINDING S OF FACT

Based on the oral and documentary evidence adduced at the

final h earing, matters subject to official recognition, and the

entire record in this proceeding, the following Findings of Fact

are made:

1. The School Board is the constitutional entity authorized

to operate, control, and supervise the public schools within La ke

County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. 1/

The School Board is also authorized to discipline instructional

staff and other school employees. See § 1012.22(1)(f), Fla.

Stat.

2. The School Board utilizes a progressive discipli nary

system. It is a five - step process that begins with an

undocumented counseling session and can progress to termination.

However, if an offense is sufficiently severe, then the School

Board can bypass lesser disciplinary measures and proceed

directly to termination.

3. Pine Ridge Elementary is within the Lake County School

District.

4. Cara Sanderlin has a bachelorÓs degree in special

education and approximately 16 years of teaching experience

during which she has taught students with conditions such as

intellectual disabilities, emotional/mental handicaps, and

autism.

5. Ms. Sanderlin has taught autistic students at Pine Ridge

Elementary since 2015. She did so in a Ðself - contained

classroomÑ in which the students stayed with her the entire

sc hool day.

6. Ms. Sanderlin kept a small, plastic spray bottle 2/ in her

classroom. The bottle is slightly less than eight inches tall

and capable of holding approximately six ounces of water. The

spray bottle has a trigger mechanism that enables one to project

a stream of water approximately 10 feet. At the outer limit of

the spray bottleÓs range, the stream loses continuity. The spray

bottleÓs nozzle can be adjusted so that one can project mist

rather than a stream.

7. Ms. Sanderlin used the spray bottle to mist he r students

when they were on the playground during warm months. That was

necessary because there were no water fountains on the playground

or her classroom.

8. During the fall of 2018, Ms. Sanderlin had two to four

students in her cla ss. D.H. was one of those students.

9. During the time period relevant to the instan t case,

D.H. was an 11 - year - old fifth - grader and had attended Pine Ridge

Elementary since second grade. D.H. is nonverbal but is able to

understand what is said to him. He indicates that he wants

something by pulling someone to the objectÓs vicinity so that it

can be retrieved for him. While D.H. is able to use sign

language to communicate the words ÐmoreÑ and Ðplease,Ñ it can be

difficult to discern what he wants. Fo r example, D.H. cannot

communicate if someone is doing something to him that he does not

like.

10. D.H. is unable to use a bathroom on his own . When

accompanied by a teacher, he insists on activating the water

faucet and flushing the toilet immediately upon entering the

bathroom. He also likes to splash water in the bathroom.

However, D.H. does not like to wash his hands, and the teacher

accompanying him to the bathroom must utilize a hand - over - hand

technique in order to get his hands clean. Thus, D. H. and the

person accompanying him tend to get wet.

11. In order to prevent a therapy session from being

interrupted, D.H. would be taken to the bathroom just before

another teacher would visit the classroom to administer speech

thera py. Therefore, it i s possible that a visiting teacher could

arrive in the classroom and find D.H. wet.

12. Erin Shropshire, a teaching assistant, usually worked

with D.H. on a one - on - one basis until the new teaching assistant,

McKenzie Shaw , 3/ s tarted on September 28, 201 8.

13. In the fall of 2018, Abdias Rodriguez was a full - time

teaching assistant in Ms. SanderlinÓs classroom. She observed

Ms. Sanderlin spray water in D.H.Ós general direction without

intending to get him wet. This action was used when

Ms. Sanderlin n eeded to get D.H.Ós attention and other measures,

such as calling his name or tapping her desk, were unsuccessful.

While this was not an uncommon occurrence, it did not happen

every day. 4/

14. Ms. Shaw sometimes used the spray bottle in a similar

man ner in order to stop D.H. from doing something in the

classroom that he was not supposed to be doing.

15. Danelle Crinion began working at Pine Ridge Elementary

as the schoolÓs speech and language teacher in the fall of 2018.

She and her teaching a ssistant, Carol Phelps, go from class to

class in order to provide instruction.

16. While in Ms. Sanderli nÓs class in the fall of 2018,

Ms. Crinion and Ms. Phelps saw Ms. Sanderlin and/or Ms. Shaw, on

three or four occasions, use the spray bottle to redi rect D.H.

after a verbal cue was ineffective in prompting D.H. to move from

one part of the classroom to another. 5/ On one occasion, they saw

that D.H.Ós shirt was wet.

17. Ms. Crinion did not question Ms. Sanderlin about those

instances but did report them to Laine Obando, the principal of

Pine Ridge Elementary, on October 19, 2018. Ms. CrinionÓs report

indicated that Ms. Sanderlin and Ms. Shaw would direct a stream

of water directly at D.H.Ós person rather than alongside him.

After talking to Ms. Sa nderlin, Ms. Rodriguez, and Ms. Phelps,

Ms. Obando contacted David Meyer, the School BoardÓs Supervisor

of Employee Relations, and Mr. Meyer initiated an investigation,

which ultimately led to the SuperintendentÓs recommendation that

Ms. Sanderlin be termi nated from her teaching position.

18. Ms. Obando is familiar with the methods used to

redirect autistic students and testified that spraying a child

with water is an inappropriate mean s of redirection.

Ms. Sanderlin concurred with Ms. ObandoÓs testimon y. 6/

19. Ms. Sanderlin has no prior violations of the rules

governing teacher conduct in Florida. As for why the School

Board is seeking to terminate Ms. Sanderlin rather than utilizing

its progressive disciplinary system, Mr. Meyer testified that

Ms . SanderlinÓs alleged conduct is sufficiently egregious to

justify termination because D.H. is nonverbal and unable to

express his feelings.

Ultimate Findings

20. Ms. Rodriguez was the most persuasive witness at the

final hearing, and her testimony has be en credited as the most

accurate description of how Ms. Sanderlin used a spray bottle in

her classroom. 7/

21. The preponderance of the evidence does not demonstrate

that Ms. Sanderlin intended for the streams of water to make

direct contact with D.H.Ós person.

22. The prepo nderance of the evidence demonstrates that Ms.

Sanderlin directed streams of water to the side of D.H. in order

to get him to comply with verbal directions. While this practice

should not be condoned as an acceptable means of redir ecting a

student, it is insufficient to support a finding that Ms.

Sanderlin committed Ðmisconduct in officeÑ in

violation of rule 6A - 5.056(2) or ÐincompetencyÑ in violation of

rule 6A - 5.056(3). Nor does such beha vior amount to a violation

of rule 6A - 10. 081(1)(b), (1)(c), and (2)(a). Ther efore, while

Ms. Sanderlin should receive some manner of discipline, the

School Board lacks justification for bypassing lesser

disciplinary measures within its progressive disciplinary system

and proceeding directly to t ermination. There is no just cause

for terminating Ms. Sanderlin.

CONCLUSIONS OF LAW

23. DOAH has jurisdiction over the subject matter and

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

sections 120.569 and 120.57(1), Florida Statutes.

24. The School Board is a duly constituted school board

charged with the duty to operate, control, and supervise all free

public schools within the school district of Lake County,

Florida, under section 1012.22.

25. The School Board seeks to terminate M s. SanderlinÓs

employment and has the burden of proving the allegations set

forth in its November 13, 2018, letter by a preponderance of the

evidence, as opposed to the more stringent standard of clear and

convincing evidence applicable to the loss of a li cense 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).

26. The preponderance of the evidence standard requires

proof by Ðthe greater weight of the evidence,Ñ BlackÓs Law

Dictionary 1201 (7th ed. 199), or evidence that Ðmore likely than

notÑ tends to prove a certain proposition. See Gross v. Lyons ,

763 So. 2d 276, 289 n.1 (Fla. 2000).

27. It i s well - established under Florida law that

determining whether alleged misconduct violates a statute or rule

is a question of ultimate fact to be decided by the trier - of - fact

based on the weight of the evidence. Holmes v. Turlington , 480

So. 2d 150, 153 (F la. 1985); McKinney v. Castor , 667 So. 2d 387,

389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489,

491 (Fla. 1st DCA 1995). Thus, determining whether alleged

misconduct violates the law is a factual, rather than a legal,

inquiry.

28. The Super intendentÓs November 13, 2018, letter alleged

that Ms. Sanderlin is guilty of Ðmisconduct in officeÑ in

violation of rule 6A - 5.056(2) and ÐincompetencyÑ in violation of

rule 6A - 5.056(3). The letter further stated that Ms. SanderlinÓs

alleged conduct amoun ted to a violation of rule 6A - 10.081(1)(b),

(1)(c), and (2)(a).

The Principles

29. The School Board alleges that Ms. Sanderlin violated

provisions within rule 6A - 10.081, which is entitled ÐPrinciples

of Professional Conduct for the Education Profession in FloridaÑ

(Ðthe PrinciplesÑ). Subsection (1) of the Principles provides

that ÐFlorida educators shall be guided by the [] ethical

principlesÑ enumerated in rule 6A - 10.081.

30. The School Board specifically alleges that

Ms. Sanderlin violated the followi ng provisions of the

Principles:

6A - 10.081(1)(b): The educatorÓs primary

professional concern will always be for the

student and the development of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exerc ise the best professional judgment

and integrity.

6A - 10.081(1)(c): Aware of the importance of

maintaining the respect and confidence of

oneÓs colleagues, of students, of parents,

and of other members of the community, the

educator strives to achieve and sustain the

highest degree of ethical conduct.

6A - 10.081(2)(a): Florida educators shall

comply with the following disciplinary

principles: Violation of any of these

principles shall subject the individual to

revocation or suspension of the individual

e ducatorÓs 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 harmful to

learning and/or to the studentÓs mental

and /or physical health and/or safety.

* * *

(5) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

31. The Principles are divided into two sections:

subsection (1), which consists of ethical principles; and

subsect ion (2), which provides disciplinary principles with which

educators Ðshall comply.Ñ

32. The ethical principles in subsection (1) have been

described as Ðaspirational in nature, and in most cases [are] not

susceptible of forming a basis for suspension o r dismissal , Ñ

Sarasota C ounty Sch ool B oar d v. Simmons , Case No. 92 - 7278 (Fla.

DOAH Nov. 9, 1993), and Ðof little practical use in defining

normative behavior.Ñ Miami - Dade Cnty. Sch. Bd. v. Lantz , Case

No. 12 - 3970 (Fla. DOAH July 29, 2014); Broward Cnty. S ch. Bd. v.

Weinberg , Case No. 15 - 4993 (Fla. DOAH Apr. 13, 2016; Fla. Broward

Cnty. Sch. Bd. Aug. 23, 2016). By contra s t, the disciplinary

principles enumerate specific ÐdosÑ and ÐdonÓtsÑ to put a teacher

on notice concerning what conduct is forbidden. Se e Miami - Dade

Cnty. Sch. Bd. v. Brenes , Case No. 06 - 1758 (Fla. D OA H Feb. 27,

2007; Fla. Miami - Dade Cnty . Sch. Bd. Apr. 25, 2007). ÐThus, it

is concluded that while any violation of [subsection

e is not

true.Ñ Id. ÐPut another way, in order to punish a teacher for

misconduct in office, it is necessary but not sufficient that a

proved, whereas it is both necessary and sufficient that a

violation of a specific rule in [subsection (2)] be proved.Ñ

Id. ; see also Miami - Dade Cnty. Sch. Bd. v. Regueira , Case No. 06 -

4752 n.4 (Fla. DOAH Apr. 11, 2007; Fla. Miami - Dade Cnty. Sch. Bd.

May 25, 2007).

33. Spraying water alongside a student is an inappropriate

means of getting an autistic studentÓs attention, but it does not

rise to the level of violating rule s 6A - 10.081(2)(a)1. or 6A -

10.081(2)(a)5. Nor does it amount to just cause for terminating

Ms. Sanderlin. See generally Polk Cnty. Sch. Bd. v. Smith , Case

No. 18 - 2983TTS (Fla. DOAH March 6, 2019)(final order

pending)(concluding that Ð[s]leeping in class on one occasion,

with students present, should not be condoned, even if the safety

of the students is not placed in jeopardy. This action warrants

no more than a dated reprimand following a conference. Just

cause does not exist to terminate Respondent.Ñ).

Criteria for Suspension and Dismissal

34. Rule 6A - 5.056 is entitled ÐCriteria for Suspension and

Dismissal.Ñ

35. The School Bo ard alleges that Ms. Sanderlin committed

Ðmisconduct in officeÑ by violating the following provisions of

rule 6A - 5.056(2):

6A - 5.056(2)(b): A violation of the

Principles of Professional Conduct for the

Education Profession in Florida as adopted in

Rule 6A - 10.081, F.A.C.;

6A - 5.056(2)(c): A violation of the adopted

school board rules;

6A - 5.056(2)(d): Behavior that disrupts the

studentÓs learning environment;

36. The School Board also alleges that Ms. Sanderlin is

guilty of Ðincompetency,Ñ which rule 6A - 5.056(3) defines as Ðthe

inability, failure or lack of fitness to discharge the required

duty as a result of inefficiency or incapacity.Ñ

37. While rule 6A - 5.056(3) sets forth multiple definitions

of Ðinefficiency,Ñ the School Board specifically alleges that

Ms. Sanderlin acted inefficiently in violation of subsection

(3)(a)2. by failing Ðto communicate appropriately with and relate

to students.Ñ

38. With regard to rule 6A - 5.056(2)(b), the alleged

violations of the Principles were discussed in the pr eceding

section.

39. As for whether Ms. Sanderlin violated rule s 6A -

5.056(2)(d) or 6A - 5.056(3)(a)2., her conduct does not rise to the

level at which it disrupted D.H.Ós learning environment nor does

it demonstrate that she is Ðincompetent.Ñ See Lake Cnty . Sch.

Bd. v. Ockerman , Case No. 12 - 2270TTS (Fla. DOAH Nov. 14, 2012),

rejected in part , ( Lake Cnty. Sch. Bd. Jan. 28, 2013)(concluding

that ÐPetitioner proved, by a preponderance of the evidence, that

Respondent slapped the hands of one or more students o ver the

course of the 2011 - 2012 school year on, at most, a few occasions.

The incidents occurred when a student took something that was not

his, tried to place his hands on or hurt another student, or

struck Respondent. The incidents were isolated and mi ld, and

could have been defensive techniques that were misperceived by

the observer. There was no evidence that the incidents were

harmful to any studentÓs learning, adversely affected any

studentÓs mental or physical health, or compromised any studentÓs

safety.Ñ).

40. In sum, the preponderance of the evidence fails to

demonstrate that Ms. Sanderlin violated any of the School BoardÓs

rules. Nor does the preponderance of the evidence demonstrate

that just cause exists to terminate Ms. Sanderlin. S ee generally

Lake Cnty. Sch. Bd. v. Mays , Case No. 18 - 5014TTS (Fla. DOAH March

4, 2019)(final order pending)(finding that Ð[b]ased on the weight

of the evidence detailed above, the School Board failed to

establish by a preponderance of the evidence that Ms . Mays

exposed the students to unnecessary embarrassment or

disparagement [by making them clean a floor with a toothbrush],

much less that she did s o intentionally.Ñ).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is REC OMMENDED that the Lake County School Board issue a

Final Order rescinding Ms. SanderlinÓs termination and imposing a

lesser disciplinary measure within its progressive disciplinary

system .

DONE AND ENTERED this 22nd day of March, 2019 , in

Tallahassee, Leo n County, Florida.

S

G. W. CHISENHALL

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.d oah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of March, 2019 .

ENDNOTE S

1/ Unless indicated otherwise, all references will be to the 2018

version of the Florida Statutes.

2/ The School Board utilize d Ms. SanderlinÓs spray bottle as a

demonstrative exhibit during the final hearing. However, the

parties agreed that the undersigned could use the demonstrative

exhibit as a means of making findings of fact regarding the spray

bottleÓs height and other ch aracteristics.

3/ Ms. Shaw did not testify during the final hearing.

4/ There was no allegation that Ms. Sanderlin or Ms. Shaw ever

repeatedly sprayed D.H. in order to obtain compliance or to get

his attention.

5/ This action was generally ref erred to as ÐredirectionÑ during

the final hearing, and Ms. Obando described redirection as Ða

strategy that is used in a classroom, I would say most often when

a student is - - for example, if a student is off task, the

teacher would intervene in some way to redirect a student back to

task. If a student is exhibiting a behavior that is not

compliant, then a teacher may redirect that student back to task.

So it is where the teacher intervenes with some skill or strategy

in order to redirect that student b ack to whatever the task is at

hand or the behavior that is requested.Ñ

6/ In a statement to Ms. Obando, Ms. Sanderlin supposedly said

that she sprayed water Ðaway from himÑ but Ðnot on him.Ñ During

the final hearing, Ms. Sanderlin testified that she would spray

water to the side of D.H. in the classroom in order to ascertain

if he wanted the spray gun , and Ms. Sanderlin denied using the

spray gun to redirect D.H.

7/ In making this finding, the undersigned is not implying that

Ms. Crinion or Ms. Phe lpsÓ testimony was untruthful. While

Ms. Phelps testified that she witnessed Ms. Sanderlin spray water

ÐatÑ D.H. and saw the water make contact with his face, it is

possible that D.H. was inadvertently struck with residual water

from a stream that was di rected to his side. Nevertheless,

Ms. SanderlinÓs actions do not amount to violations of the rules

cited in the School BoardÓs November 13, 2018, letter .

COPIES FURNISHED:

Mitchell L. Davis, Esquire

Smothers Law Firm, P.A.

523 Wekiva Commons Circle

Ap opka, Florida 32712

(eServed)

Stephen W. Johnson, Esquire

Johnson Turner , PLLC

215 North 2nd Street

Leesburg, Florida 34748

(eServed)

Elizabeth A. Turner, Esquire

Johnson Turner , PLLC

215 North 2nd Street

Leesburg, Florida 34748

Matthew Mears, Gener al Counsel

Department of Education

Turlington Building , Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Richard Co r coran

Commission er of Education

Department of Education

Turlington Building , Suite 1514

325 West Gaines Stre et

Tallahassee, Florida 32399 - 0400

(eServed)

Diane Kornegay , Superintendent

Lake County School Board

201 West Burleigh Boulevard

Tavares , Florida 327 78 - 2496

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exception s 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.