19-002907TTS St. Lucie County School Board vs. Tangela Smith Status: Closed Recommended Order on Monday, August 31, 2020.

Summary: School Board failed to prove by preponderance of evidence that teacher's conduct was violation of School Board policies justifying termination.

P RELIMINARY S TATEMENT

By letter dated January 23, 2019, Tangela Smith ("Respondent" or

"Smith") was notified that the St. Lucie County School Board ("Petitioner" or

"School Board" or "District") took action to termin ate Respondent's

employment.

On February 8, 2019, Respondent timely elected to dispute the reasons for

the termination and requested a hearing.

On February 12, 2019, at the regularly scheduled School Board meeting,

the School Board suspended Respondent without pay , and the matter was

referred to the Division of Administrative Hearings ("DOAH"). The matter was assigned to the undersigned administrative law judge.

A Petition for Termination was filed on May 30, 2019. The School Board

charged Smith with v iolations of School Board P olicies 6.301(2), 6.301(3)(b)1 . ,

6.301(3)(b)10 . , 6.301(3)(b)12 . , 6.301(3)(b)16 . , 6.301(3)(b)19 . , 6.301(3)(b)29 . ,

and 6.301(3)(b)34 . , and Florida Administrative Code R ules 6A - 10.081(2)(a)1 .

and 6A - 5.056 .

A final hearing was origi nally scheduled for August 28 and 30, 2019. After

several continuances for good cause, the case proceeded as rescheduled on March 10 and 11, 2020.

At hearing, Petitioner presented the testimony of s i x witnesses:

Robert Craig Logue, principal; Mackenzie Bu ck, third - grade teacher; Linda

Auciello, first - grade teacher; Mikki Watson, third - grade teacher; Rhiannon

Myers, third - grade teacher; and Aaron Clements, director of employee

relations. Petitioner's Exhibits numbered 1 through 10, 12 through 14,

and 1 8 wer e admitted into evidence. Respondent testified on her own behalf

but did not offer any exhibits for admission into evidence.

At the close of the hearing, the parties stipulated that the proposed

recommended orders would be due 30 days after the filing of the transcript.

The two - volume Transcript of the final hearing was filed with DOAH on

April 29, 2020.

The undersigned granted an Unopposed Motion for Extension of Time to

File Proposed Recommended Orders , and the deadline was extended to

July 1, 2020. Bot h parties filed timely proposed recommended orders, which

have been considered in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to the Florida

Statutes (2019).

F INDINGS OF F ACT

1. Petitioner is a duly - co nstituted school board charged with the duty to

operate, control, and supervise all free public schools within St. Lucie County,

Florida , p ursuant to Article IX, section 4 , of the Florida Constitution.

2. In 2008, Smith started working at Mariposa Elementa ry School

(“Mariposa”). She was employed as a self - contained 1 exceptional student

education (“ESE”) teacher for grades kindergarten to second grade (“K - 2”).

3. Smith’s employment was pursuant to a professional services contract,

and the Collective Bargain ing Agreement between the School Board and the

Classroom Teachers ’ Association.

4. Robert Craig Logue (“Principal Logue” or “Logue”), the principal at

Mariposa, served as Smith’s supervisor.

1 A self - contained classroom has a teacher with students t hat are assigned to that classroom

with that teacher all day long.

5. Logue evaluated Smith for the 2008 - 2009 school year and place d her on

a Performance Review Plan in 2009 to assist Smith with some performance

areas she needed improvement in to better serve the students.

6. In 2010, Smith successfully completed the Performance Review Plan.

7. For the next eight years, Smith contin ued her employment at Mariposa

as a self - contained ESE classroom teacher.

8. During the 2016 - 2017 school year, Principal Logue moved Smith out of

a self - contained classroom and reassigned Smith to a facilitated support

teacher position. 2

9. In 2016, when Smith had some difficulty maintaining the schedule to

see ESE students for push - in services, Principal Logue observed and made

adjustments in the classroom to resolve the scheduling problems.

10. During the 2017 - 2018 school year, Smith was reassigned bac k to a

self - contained K - 2 classroom.

11. On May 8, 2018, Principal Logue evaluated Smith for the 2017 -

2018 school year. Logue informed Smith to maintain a strict schedule

because she did not always follow the times of her lesson plans and taught

certain s ubjects in non - scheduled time blocks. Logue also expressed that he

had concerns and wanted Smith to improve her classroom management.

12. The evaluation stated:

While you are being recommended for

reappointment for 2018 - 2019, there are a number

of areas t hat I would like you to work on for the

next year. Specifically, my expectation is you will

maintain a strict schedule with the students you

serve, while meeting their varied needs.

Additionally, I would like to see you improve your classroom management to ensure the safety and

academic success of your students. I am optimistic that with effort you can improve in these areas.

2 A facilitated support teacher goes into or pushes into the general education classrooms and

works with the ESE students that are in that classroom in small groups typically while at

the s ame time the classroom teacher is there working with the remainder of the general

education students.

13. For the 2018 - 2019 school year, Principal Logue changed Smith’s

assignment back to an ESE facilitated support resource teacher at Mariposa.

14. During the school year, Smith was responsible for push - in services for

ESE students grades kindergarten through third . She walked from classroom

to classroom, sometimes across the school campus, to provide ESE services in

assigned teachers’ classrooms for 30 - minute time blocks during the day.

Smith’s facilitated support push - in weekly schedule was the following:

15. Smith’s role in each of her assigned classrooms was to pull ESE

students to provide small group instruction and to assist the ESE students

based on their specific individual education plan (“IEP”) goals and learning

needs.

16. During the end of August and September 2018, Principal Logue

received complaints and reports from teachers that Smith was not showing

up to her assigned c lassrooms and providing push - in services to ESE

students pursuant to their respective IEPs.

17. At some point, Linda Auciello (“Auciello”), a Mariposa first - grade

teacher, began to have concerns that her students with disabilities were not

receiving the s ervices required by their IEPs because Smith was not showing

up to provide their support at the scheduled times.

18. On or about August 26, 2018, Auciello complained to Principal Logue

that Smith was testing other students and not assisting her students a fter

Smith reported to her classroom at 9:36 a.m. , then left right after her arrival ,

because the office called looking for Smith. Before she left, Smith explained to

Auciello that she was going to Rhiannon Myers ’ (“Myers”) classroom for a

test, which Auci ello later double checked and confirmed Smith was

performing third - grade testing.

19. On September 7, 2018, Logue received an email from Auciello that

stated:

I have not seen my ESE support person for reading

all week. She says she has been testing for 3 rd grade

reading. Today I needed her to test my student for our math assessment and she said yes, but she first had to go get Ms. Buck’s 3

rd grade students to test

at the same time. I guess I do not understand why she is testing other grades at this time of year during my scheduled time.

20. Smith recognized that her schedule was extremely tight without

allotted time in the schedule for her to even walk to her next classroom on

the Mariposa campus.

21. On September 11, 2018, Smith addressed scheduling issues with

Principal Logue. She informed him that she was having problems having any time to talk to the teachers about what was going on with her ESE students in their class.

22. Principal Logue responded to Smith’s request for scheduling

assistance by email dated September 12, 2018, that stated:

As I looked over your schedule, I can find at least

two additional times that you could meet with

them. You have planning each day from 7:40 - 7:55

and then again from 8:30 - 9:00 am. Your duty time

in the am is from 7:55 to 8:25, so it would not

conflict with either of these times. You will have 45

minutes where you could either meet with these teachers (if they are available), or time that you

could email them to see how your students are

doing in their classes.

Include d in his email response, Logue also included his evaluation comments

from Smith’s 2017 - 2018 Final Evaluation , dated May 8, 2018, with Logue’s

expectations that he wanted Smith to maintain a strict schedule.

23. On September 14, 2018, Auciello emailed Princ ipal Logue again that

Smith had not shown “up at all today.” She also informed him by email that

she was attaching a log of Smith’s attendance for the week that she had kept,

which showed Smith only provided 90 minutes of the five hours of ESE

support she was scheduled to provide in her classroom.

24. Auciello tracked Smith’s attendance on her cell phone. Auciello’s

weeklong log of Smith’s attendance indicated that Smith was 15 minutes late

on September 10, 2018, and did not show up for math that day; a su bstitute

teacher reported to Auciello that Smith was a no show all day on

September 11, 2018; Smith showed up at 9:45 a.m., 15 minutes late on

September 12, 2018; and , on September 13, 2018, Smith was on time for

reading and math.

25. On September 24, 2018 , Auciello reported to Principal Logue by email

that Smith did not show up for reading time but arrived in her classroom

later , at 12:20 p.m. , attempting to make up time. Smith inquired if it was al l

right if she came back at 1:00 p.m. instead of 12:30 p.m . “because they needed

[me] for math testing.” Auciello agreed to let Smith reschedule and provide

support later even though the scheduled lesson would be over when she

returned, but Smith never returned that day to provide support.

26. As a result of Smi th not showing up and providing push - in services to

the ESE students in Auciello’s class, two children, P.V. and G.N., lost

approximately 3.5 hours of services each.

27. Mackenzie Buck (“Buck”), a Mariposa third - grade teacher, also

developed a concern abo ut Smith failing to provide services to the seven ESE

students in her classroom because , when Smith was either late or did not

show up, ESE students did not get IEP services on those days.

28. On September 26, 2018, Buck emailed Principal Logue and Angela

Patton (“Patton”), Mariposa vice principal, informing them of her concerns

about Smith’s various absences and tardiness. In her email, she detailed that ,

on August 17 and 20, 2018, Smith showed up at 10:15 a.m. instead of

10:00 a.m. and Smith had three no shows on August 31, September 7, and 24,

2018. Buck also reported Smith failed to provide testing accommodations

because she did not show up for several testing days.

29. Smith worked with the ESE students, C.H., A.T., L.M.L., J.M., J.T.,

and B.B., in Buc k’s classroom. Buck was especially concerned about Smith

not showing up because one of her ESE students had a difficult time

communicating and needed Smith’s specialized instruction.

30. Most of the time Buck neither received prior notice that Smith was

g oing to be a no show for push - in services nor was Smith able to make up the

time missed from Buck’s class.

31. Myers, a Mariposa third - grade teacher, who taught in a self - contained

general education classroom with five ESE students, at some point , also

not iced that Smith was not showing up consistently to provide facilitated

support services to her ESE students on the three days Smith was scheduled

to be in her classroom.

32. Myers started keeping track of when Smith missed a scheduled push -

in block during a time when Smith was scheduled to be in the classroom to

provide services for the students after William Spies (“Spies”), ESE

department chair, requested she do so. Myers believed Smith failed to show

up and provide services on September 7, 14, 17, 19, 21 , and 24, 2018. Smith

also failed to show up to provide support during student testing for Myers.

33. Between August 17 and September 24, 2018, five of Myers’ s students,

A.C., A.R., D.H., S.M., and G.L . , each lost three hours of specialized

instruction wh en Smith did not show up to provide services for a total of

15 hours.

34. During the 2018 - 2019 school year, Smith ’s duties also included

providing support during unit testing for students. Often such a role required that Smith give the test and oversee th e test for the ESE students.

35. Smith prioritized testing on her schedule after the ESE department

chair instructed Smith that third grade took precedence when it came to

testing .

36. The other two Mariposa facilitated support teachers did not have

test ing as a job duty like Smith.

3

37. Smith provided tests in her classroom in the first - grade hallway,

which was a different part of the campus from the third - grade classrooms.

38. Smith tested first, second, and third grades.

39. To test students , Smith w ould pick the students up from their various

classrooms and walk them to a testing classroom on a different part of the

Mariposa campus. After getting the students to the testing classroom, Smith

prepared the students for the test by putting up barriers be tween each

student.

40. When Smith tested the ESE students, testing time varied according to

the individual student’s IEP. Oftentimes , the tests took longer than the

general education tests because ESE students’ IEPs usually were allotted

“100 percent of the time for testing,” which was as long as they needed time

to complete the test. Most testing sessions were longer than the 30 - minute

blocks of Smith’s schedule. Smith had to remain with the students until the last one completed testing.

3 Smith’s detailed testimony about the difference in job duties from the other two facilitated

support teachers is held to be credible.

41. Mikki Watson (“Watson”), a Mariposa third - grade teacher, had

18 students in her self - contained classroom. Three students, A.M., M.H., and

J.G., 4 were receiving ESE services from Smith who provided push - in support

on Monday, Wednesday, and Friday from 11:00 a.m. to 11: 30 a.m.

42. Watson started tracking the student services Smith provided at the

beginning of the year on a school calendar by marking the days the students

received services by Smith.

43. Watson noted on her calendar that Smith did not report to her

classro om to provide services on September 10, 12, 14, 17, and 21, 2018, and

each of her ESE students missed a total of 2.5 hours for a total of 7.5 hours. 5

4 4 . Smith was able to assist Watson with her testing. Smith took ESE

students to her classroom to test , an d , oftentimes , those students would get

extra time with testing based on their IEP.

4 5 . Principal Logue believed that Smith should have worked on IEPs

during her planning periods before, during , or after school.

4 6 . However, ESE D epartment C hair Spies di rected Smith’s work and

instructed her to complete IEP assignments during time blocks , including her

scheduled push - in classroom time. Spies assigned Smith to work with IEP

plans and FTE forms to secure payments for the School Board. Smith

followed the ins tructions she was given from the ESE department chair.

4 7 . Smith utilized the Portal to Exceptional Student Education Resources,

(“PEER”), a database used to write students’ IEPs. PEER documents show

each time a teacher is on the computer in the portal wo rking on an IEP. Each

4 Watson testifie d that students N.G . - R. and D.H. were not provided services by Smith in

September 2018.

5 The undersigned reduced the amount of Watson’s missed hours asserted by the School

Board. Since N.G. - R . and D.H. were not Smith’s students during September, they sho uld not

be included in the calculation. Therefore, the hour s of services missed has to be reduced.

Instead of multiplying 2.5 hours by five students, the actual number of students to multiply

by is three. Therefore, the total number of service hours Smith failed to provide Watson’s

three students is 7.5 not 12.5.

individual that utilizes PEER has their own login and password to sign in on

the system.

4 8 . At various times on September 24, 2018, when Smith was scheduled to

be in a classroom performing push - in services, Smith was logged in as

wor king on PEER.

4 9 . The ESE department chair also assigned Smith to participate in IEP

meetings during the two blocks in her schedule from 11:00 a.m. to 11:30 a.m.

on Tuesdays and Thursdays when Smith did not have push - in classroom

duty.

50 . Principal Logue received teacher complaints about Smith neither

testing students nor servicing her ESE students during the scheduled

classroom times she was assigned to push - in and provide support. However,

Logue never addressed the scheduling issues, missing specialized ESE

instruction, conflicting job duties, or testing with Smith.

5 1 . Logue created a chart attempting to document Smith’s combination of

alleged hours of instruction she missed including student’s name, grade level, teacher, date, and time missed. Logue ad ded up a cumulative amount to get a

total of minutes lost. His calculation included N.G. - R . and D.H. and totaled

47.5 hours from August 17 through September 24, 2018.

5 2 . On or about September 25, 2018, Logue filled out an Employee

Reporting Form (“report ing form”) that he forwarded to Aaron Clements

(“Clements”), director of the Office of Employee Relations for St. Lucie Public

School s , reporting that Smith was failing to follow her schedule and show up

to service her ESE students on more than one occasio n. Clements was

assigned to investigate the allegations.

5 3 . On September 26, 2018, Principal Logue was in the school parking lot

and saw Smith in the parking lot. Smith spent seven minutes retrieving her work computer she had accidently left in her car. Logue returned inside the

school building after Smith reentered. Logue went to Smith’s assigned

classroom, but she was not there assisting ESE students. Logue neither

emailed her about the parking lot incident nor discussed it with her.

5 4 . That same day, the School Board placed Smith on Temporary Duty

Assignment (“assignment”) pending an investigation of the allegations that

Smith failed to provide push - in services. The assignment was Smith’s first

disciplinary action. She had never been warned, reprimand ed, or directed in

writing or verbally that she was not present in the classrooms at the times

she was scheduled to be there.

5 5 . After receiving the reporting form and other documentation provided

by Principal Logue, Clements met with Smith twice, on Nove mber 8 and

December 7, 2018, to discuss the allegations of her failing to show up to

provide push - in services to ESE students .

5 6 . At each meeting, Smith was provided an opportunity to respond to the

allegations raised. After completing his investigation, Clements concluded

that Smith intentionally failed to provide ESE services to the students and

violated numerous School Board’s policies.

5 7 . The matter ultimately was brought to the attention of the s chool

s uperintendent, who by letter advised Smith that a determination had been

made that there was just cause to terminate Smith base d on the numerous

School Board p olicies she violated and that he , therefore , would recommend

such to the School Board. The School Board followed the s chool

s uperintendent’s rec ommendation, and Smith timely requested an appeal to

the disciplinary action.

U LTIMATE F INDINGS OF F ACT

5 8 . During the 2018 - 2019 school year, Smith was a facilitated support

teacher that had various days where she either was late or missed her scheduled c lassroom time. When Smith missed classroom time , those ESE

students assigned to her did not receive their specialized instruction.

5 9 . Smith missed classroom time because she was unable to fulfill all her

facilitated support job responsibilities because he r job duties had conflicting

times. In addition to her scheduled classroom time, she was also assigned

other duties such as ESE testing or IEP preparation, which were sometimes

to be performed at the same time she was to provide push - in services.

60 . Smit h’s tardiness was directly attributable to her daily schedule of

multiple 30 - minute classroom segments of time without even a minute break

between each 30 - minute allotted block before Smith was to be in the next

classroom providing push - in services to ESE students. No time was scheduled

for Smith to walk between classes or set up for the next class.

6 1 . At hearing, Smith credibly testified , “I don’t have sufficient time to

fulfill [the] schedule.”

6 2 . All Smith’s duties she performed benefitted ESE student s.

6 3 . ESE D epartment C hair Spies told Smith what to do related to ESE

services , and she was expected to follow his instructions.

6 4 . No evidence was presented at hearing that Smith misused her work

time. Instead, the record only showed Smith had conflicti ng duties to perform

at the same time. She was expected to attend her daily classroom schedule

and provide ESE testing or work on IEP - related assignments at the same

time.

6 5 . At hearing, Smith testified credibly and persuasively, “I couldn’t be in

two pl aces at one time. So, I just tried to make up the time with the students

I missed.”

6 6 . At times, when Smith was scheduled to be with students in a teacher’s

classroom, the ESE department chair instructed Smith to complete FTE forms in his office to secure payments for the District.

6 7 . Other times, Smith would test ESE students , and , because most ESE

students had no time limits for testing, Smith would still be testing when she was supposed to be providing push - in services.

6 8 . When Smith was unable to mak e scheduled classroom times , because

she was performing other job duties, she attempted to try to make up for

some of her push - in services missed. However, most of the time Smith was

not able to make up the time because either the teachers or her ESE stude nts

were unavailable at the new time.

6 9 . At hearing, Smith testified compellingly that, “I did the best I could

when testing was over to try to make up time.”

70 . Smith’s schedule was so tight that she did not even have time to talk

to teachers about her students.

7 1 . On September 11, 2018, Smith acknowledged her scheduling

challenges and tried to resolve them by notifying Principal Logue that she

was having problems performing her push - in duties. Smith specifically

expressed her inability to talk to the teachers to get a handle on what her

students were doing.

7 2 . By email the next day, Logue pointed to times before and after school

or Smith’s planning periods, where the ESE chair scheduled Smith to attend

IEP meetings, as time periods Smith could meet w ith other teachers. Logue

also dropped in the same language from her 2017 - 2018 evaluation regarding

his expectation that she follow a strict schedule .

7 3 . After Smith notified Principal Logue of her time challenges, besides

the email , he did not suggest o r provide Smith any extra time or adjust or

change her unmanageable work schedule in order to meet with the teachers and complete her scheduled duties.

7 4 . Smith could not have met Principal Logue’s expectations because the

strict schedule had no breaks to get from one classroom to the next classroom ,

and Smith also had numerous conflicting duties to perform at the same time.

7 5 . At hearing, Auciello testified that it was not unreasonable for Smith to

arrive late to class because of the way the schedule wa s structured and the

fact that Smith had to travel from classroom to classroom.

7 6 . After addressing her challenges with Principal Logue, Smith

continued to try to juggle her schedule and complete all her job duties that

oftentimes had time conflicts.

7 7 . Smith prioritized third - grade testing following the instructions of the

ESE department chair who told her to make that her work priority.

7 8 . Principal Logue was well aware that Mariposa ESE students were

missing specialized instruction because teachers w ere reporting and

complaining to Logue that Smith was either late or failed to show up to

provide ESE facilitated support. He also received complaints that Smith was

testing other students at various times when Smith should have been in a particular teache r’s classroom.

7 9 . Auciello specifically complained to Principal Logue on two occasions

that instead of Smith being in her room providing her students push - in

specialized instruction , Smith was testing elsewhere.

80 . After receiving the teacher complaints about Smith, Logue never

notified nor addressed the no show allegations with Smith, took any action to remedy the missed services or did anything to rectify Smith’s time conflicts t o

prevent any further recurrences. Logue did not even issue any orders or directives regarding her failure to show up for facilitated support .

8 1 . Logue’s first action regarding the allegations against Smith was to

report her to human resources on September 25, 2018.

8 2 . Logue’s chart outlining Smith’s alleged hours of missed i nstruction

totals 42.5 hours after removing N.G. - R . and D.H., the two students included

in the original calculations not assigned to Smith.

8 3 . Smith has never been warned, reprimanded verbally or in writing , or

suspended during her tenure with the School Board.

8 4 . On September 26, 2018, Smith received her first discipline when she

was placed on leave while Clements investigated the allegations of her failure

to follow her schedule.

C ONCLUSIONS OF L AW

8 5 . DOAH has jurisdiction over the subject matter of this proceeding and

the parties thereto pursuant to sections 120.569 and 120.57(1), Florida

Statutes.

8 6 . District superintendents are authorized to make recommendations for

dismissal of school board employees, and school boards may dismiss school board instructional staff for “just cause.” §§ 1001.42(5), 1012.22(1)(f),

1012.27(5), and 1012.33(6)(a), Fla. Stat.

8 7 . The School Board is seeking to terminate Respondent from

employment and has the burden of proving that it has just cause to terminate Respon dent’s employment as a teacher.

8 8 . Petitioner’s burden to prove the charges against Respondent must be

met by a preponderance of the evidence. Allen v. Sch. Bd. of Dade Cty .,

571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade Cty ., 569 So. 2d

88 3 (Fla. 3d DCA 1990).

8 9 . The preponderance of the evidence standard requires that the proof

against Respondent be by the greater weight of the evidence, or evidence that

“more likely than not” tends to prove the allegations. Gross v. Lyons, 763 So.

2d 276 , 280 n.1 (Fla. 2000).

9 0 . Whether Respondent committed the charged offenses is a question of

ultimate fact to be determined by the trier - of - fact in the context of each

alleged violation. Holmes v. Turlingt on, 480 So. 2d 150, 153 (Fla. 1 st

DCA 1985); McKi nney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995).

9 1 . Section 1012.33(6)(a), Florida Statutes, provides that the teacher “may

be suspended or dismissed at any time during the term of the contract,” but

only “for just cause” as provided in paragraph (1)(a) of the statute.

9 2 . Section 1012.33 provides:

(1)(a) Each person employed as a member of the

instructional staff in any district school system shall be properly certified pursuant to

s. 1012.56 or s. 1012.57 or employed pursuant to

s. 1012.39 and sh all be entitled to and shall receive

a written contract as specified in this section. All

such contracts, except continuing contracts as

specified in subsection (4), shall contain provisions

for dismissal during the term of the contract only for just cause . Just cause includes, but is not

limited to, the following instances, as defined by

rule of the State Board of Education: immorality,

misconduct 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 performance 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.

9 3 . Florida Administrative Code Rule 6A - 5.056 also defines “just cause”

and specifies the criteria for dismissal, which provides , in pertinent part:

6A - 5.056. Criteria for Suspension and Dismissal.

[ “ ] Just cause” means cause that is legally sufficient.

Each of the charges upon which just cause for a

dismissal act ion 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) “Misconduct in Office” means one or more of the f ollowing:

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

(c) A violation of the adopted school board rules;

(d) Behavior that disrupts the student’s learning environment; or

(e) Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties.

9 4 . In the Petit ion for Termination filed in this proceeding, the School

Board charges Smith with violating a variety of School Board policies, as well

as administrative rules , by alleging that Smith’s failure to show up to service

her ESE students establishes “just cause ” for her termination.

95. Petitioner relies on School Board Policies 6.301(2), 6.301(3)(b)1 . ,

6.301(3)(b)10 . , 6.301(3)(b)12 . , 6.301(3)(b)16 . , 6.301(3)(b)19 . , 6.301(3)(b)29 . ,

and 6.301(3)(b)34 . as the focal point of this case for Respondent’s charges .

96 . S chool Board Policy 6.301 provides , in pertinent part:

(2) All employees shall abide by the Principles of

Professional Conduct for the Education Profession

in Florida and the Standards of Competent and

Professional Performance in Florida. All certificate d employees shall be required to complete

training on the standards of ethical conduct upon employment and annually thereafter. All

employees shall also abide by the Florida Code of

Ethics for Public Officers and Employees.

(3) Disciplinary Guidelines for Employees

* * *

(b) The following list is not intended to be all inclusive, but is typical of infractions that warrant

disciplinary action:

1. Insubordination

* * *

10. Failure to follow a direct order in the normal

performance of an employee’s job

* * *

12. Negligence

* * *

16. Neglect of duty

* * *

19. Violation of any rule, policy, regulation, or established procedure

* * *

29. Any violation of the Principles of Professional

Conduct for the E ducation Profession, the

Standards of Competent and Professional

Performance, or the Code of Ethics for Public

Officers and Employees

* * *

34. Failure to correct performance deficiencies [.]

97. Petitioner charged Respondent with violating the P rinciples of

Professional Conduct for the Education Profession in Florida, Florida

Administrative Code Rule 6A - 10.081(2)(a)1 . , which provides , in pertinent

part:

(2) Florida educators shall comply with the

following disciplinary principles. Violation of an y of

these principles shall subject the individual to revocation or suspension of the individual

educator's certificate, or the other penalties as

provided by law.

(a) Obligation to the student requires that the

individual:

1. Shall make reasonable effor t to protect the

student from conditions harmful to learning and/or

to the student's mental and/or physical health and/or safety.

P RINCIPLES OF P ROFESSIONAL C ONDUCT F OR T HE E DUCATION P ROFESSION I N

F LORIDA

98. In Petitioner’s Petition for Termination and P roposed Recommended

Order, Petitioner asserts that Smith harmed students’ learning by failing to

provide over 40 hours of specialized instruction push - in services to her ESE

students in the classroom. Teachers have a duty to protect students from

harmful c onditions. However, the evidence in this matter does not support

the School Board’s position. Petitioner’s argument is rejected because

Petitioner did not assess the teacher’s standard of conduct to determine harmfulness or the reasonable effort made in th e instant case. First, evidence

regarding a teacher’s actions in the face of the alleged harmful conduct must

be evaluated. Next, the standard of conduct determination is assessed based

on whether the same or similar type of action of a “reasonable teacher ”

would have taken place under similar circumstances. See Sch . Bd . of

Broward Cty . v. Lynn Deering , Case No. 05 - 2842 (Fla. DOAH July 31, 2006).

99. Evaluating Smith’s alleged harmful actions by applying Deering shows

that Smith made reasonable efforts to perform all her conflicting job duties. The evidence in the instant case demonstrates that Smith’s no show at

scheduled times was because she had required duties that conflicted. All of Smith’s duties were for the benefit of ESE students , whether she was

p roviding push - in services, ESE testing, or IEP preparation. To that end, the

record shows that Smith was incapable of performing all the duties assigned because the time often conflicted. Likewise, any teacher in Smith’s position would have had the identic al challenges to perform all the push - in services

with the testing duties that the other facilitated support teachers did not

have, and other mandatory conflicting job duties assigned by the ESE

department chair. Additionally, Smith acted sensibly by prior itizing the

third - grade testing as instructed by the ESE department chair who acted in a

supervisory capacity. Smith also initiated attempts to make up push - in hours

missed. Furthermore, Principal Logue was made aware of Smith’s conflicting

job duties, but made no adjustments to rectify any conflicts, took no action to

catch up the missing services , or did anything to prevent recurrences.

Therefore, Smith’s determination to try to juggle and complete the conflicting

duties, while sometimes missing push - in s ervices, and her practical efforts to

try to make up missed push - in sessions were the actions of a reasonable

teacher under similar circumstances , and Smith’s conduct is not deemed

harmful in violation of rule 6A - 10.081(2)(a)1. Since Petitioner failed to m eet

its burden to show that Smith violated the Principles of Professional Conduct

for the Education Profession in Florida, rule 6A - 10.081(2)(a)1 . , no violations

of School Board P olicies 6.301(2) and 6.301 (3)(b)29 . were committed by

Smith.

N EGLIGENCE & N EG LECT OF D UTY

100. Petitioner also charged Smith with negligence and neglect of her duty

by not providing the alleged over 40 hours of push - in services to her ESE

students in the classroom , and Petitioner maintains that Smith’s 2018 - 2019

evaluation specific ally directed Smith to maintain a strict schedule with

students. School Board Polic ies 6.301(3)(b)12 . and 6.301(3)(b) 16 . fail to define

negligence or neglect of duty. However, Merriam Webster Dictionary defines

“ negligence ” as “failing to exercise the care expected of a reasonably prudent

person in like circumstances” and “ neglect ” as “to leave undone or unattended

to especially through carelessness . ” https://www.merriam - webster.com/

dictionary/negligence (last visited August 25 , 2020 ) . https://www.merriam -

webster.com/dictionary/neglect (last visited August 26, 2020 ) .

101. The evidence proves that Smith juggled her conflicting job duties ,

making every effort to complete all of them as any reasonable teacher in a

like position would have done under like circu mstances , as discussed above in

paragraph 99 , with the inflexible jam - packed work schedule. The evidence

also shows that her actions were prioritized and not careless , and , if Smith

was not in the classroom, she was testing ESE students , working on IEP

ass ignments , or providing services for ESE students, which were all

her duties. Therefore, Petitioner has failed to sustain the charge of

negligence and neglect of duty against Smith in violation of School Board

P olicies 6.301(3)(b)12 . and 6.301(3)(b) 16.

F AIL ING T O C ORRECT P ERFORMANCE D EFICIENCY

102. The School Board also charged Respondent with failing to correct her

performance deficiency. However, in this case , the School Board did not offer

any persuasive evidence to establish that Respondent was informed of any

performance deficiencies other than the Performance Improvement Plan that

Respondent successfully completed in 2010. Therefore, Petitioner fails to

meet its burden that Respondent violated School Board P olicy 6.301(3)(b)34 .

by failing to correct her performance deficiency.

I NSUBORDINATION

103. Petitioner also charged Smith with violating School Board P olicies

6.301(3)(b)1 . and 6.301(3)(b) 10. Although the School Board does not have a

definition for insubordination in its policies, the term is defined in rule 6A -

5.056, which prescribes “criteria for suspension and dismissal of instructional

personnel,” and provides , in pertinent part , as follows:

(4) Gross insubordination means the intentional

refusal to obey a direct order, reasonable in nature,

and g iven by and with proper authority,

misfeasance, or malfeasance as to involve failure in

the performance of the required duties.

104. In this matter, the evidence demonstrates that Principal Logue

neither discussed Smith’s absences with Smith after the tea chers brought

them to his attention nor provided Smith any directives regarding such.

Instead, the record shows Smith tried to perform all her conflicting job duties ,

including prioritizing her duties as instructed by the ESE department chair.

Principal Lo gue’s evaluation from the 2017 - 2018 school year and email

relaying to Smith his expectation that she follow a strict schedule does not support Petitioner’s assertion that such was a directive. Instead, the evidence

indicates that at no time did Smith refus e an order or direction related to her

no shows because Logue never addressed the no show allegations with her.

To that end, the record is void of any evidence that Smith intentionally

refused to obey or follow a direct order in the normal performance of h er job.

Therefore, Petitioner failed to prove Smith violated School Board

P olicies 6.301(3)(b)1 . and 6.301(3)(b) 10.

105. In sum, Smith’s actions do not fall within the parameters of

misconduct in office pursuant to rule 6A - 5.056 as alleged by Petitioner .

T herefore, Smith is not guilty of violating rule 6A - 5.056.

106. Additionally, since Smith’s conduct did not violate any of the

aforementioned rules, policies, regulations, or established procedures to which she was charged , Petitioner has failed to sustain the charge against

Respondent for violation of School Board P olicy 6.301(3)(b)19 .

107. Accordingly, the School Board has failed to prove that Respondent’s

actions alleged in the Petition for Termination are violations of School Board

P olicies 6.301(2), 6.3 01(3)(b)1 . , 6.301(3)(b)10 . , 6.301(3)(b)12 . , 6.301(3)(b)16 . ,

6.301(3)(b)19 . , 6.301(3)(b)29 . , and 6.301(3)(b)34 . or rules 6A - 10.081(2)(a)1 .

and 6A - 5.056 , and , therefore, just cause for termination has not been

established.

R ECOMMENDATION

Upon consideration of the Findings of Fact and Conclusions of Law

reached, it is

R ECOMMENDED that the St. Lucie County School Board enter a final order

(1) rescinding its previous decision to suspend Smith without pay pending

dismissal and (2) awarding Smith the back salary , plus benefits, that accrued

during the administrative proceedings .

D ONE A ND E NTERED this 31st day of August , 2020 , in Tallahassee, Leon

County, Florida.

J UNE C. M CKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildin g

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 31st day of August , 2020 .

C OPIES F URNISHED :

Barbara L. Sadaka, Esquire

St. Lucie County School Board

Legal Department

9461 Brandywine Lane

Port St. Lucie, Florida 34986

(eServed)

Mark S. Wilensky, Esquire

Dubiner & Wilensky, LLC

1200 Corporate Center Way , Suite 200

Wellington, Florida 33414 - 8594

(eServed)

E. Wayne Gent, Superintendent

St. Lucie County School Board

501 N orthwest University Boulevard

Port St. Lucie, Florida 34986

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 3239 9 - 0400

(eServed)

Richard Corcoran, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to sub mit 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.