19-006520TTS Palm Beach County School Board vs. Debra Turnbull Status: Closed Recommended Order on Wednesday, July 7, 2021.

Summary: Just cause exists for suspending Respondent without pay for 15 days, but not to skip steps under the progressive discipline doctrine to terminate her employment. She is entitled to back pay and benefits from the time her 15-day suspension would have run.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P ALM B EACH C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 19 - 6520TTS

D EBRA T URNBULL ,

Respondent .

/

R ECOMMENDED O RD ER

Pursuant to notice, a formal administrative hearing was conducted before

Administrative Law Judge ( Ñ ALJ Ò ) Robert S. Cohen of the Division of

Administrative Hearings ( Ñ DOAH Ò ) on March 23, 2021, by Zoom video

teleconference .

A PPEARANCES

For Petitioner: J ean Marie Middleton, Esquire

V. Danielle Williams, Esquire

School District of Palm Beach County

Office of General Counsel

3300 Forest Hill Boulevard, Suite C - 331

West Palm Beach, Florida 33406 - 5869

For Respondent: Mark S . Wilensky, Esquire

Dubiner & Wilensky, LLC

1200 Corporate Center Way, Suite 200

Wellington, Florida 33414

S TATEMENT OF T HE I SSUE

The issue is whether Respondent , Debra Turnbull Ô s ( Ñ Ms. Turnbull Ò or

Ñ Respondent Ò ), employment with Pet itioner , Palm Beach County School

Board ( Ñ School Board Ò or Ñ Petitioner Ò ), as an elementary teacher , should be

terminated , based upon the statements of the nature of the controversy set

forth in the Joint Second Amended Pre - h earing Stipulation filed by the

parties.

P RELIMINARY S TATEMENT

On October 29, 2019, Donald E. Fennoy, II, Ed.D. , Petitioner Ô s

s uperintendent ( Ñ Superintendent Ò ) , issued Respondent a Notice of

Recommendation for Termination from Employment. The letter informed

Respondent that , at the Scho ol Board Meeting on November 20, 2019, the

Superintendent would recommend her suspension without pay and

termination of her employment. The stated basis for the Superintendent Ô s

action was that just cause existed to warrant Respondent Ô s termination for :

(1 ) Failure to Exercise Best Professional Judgment ; (2) Gross

Insubordination ; and (3) Continued Failure to Follow Policy/Rule or

Directive.

The letter further informed Respondent that she could appeal by either a

grievance pursuant to the collective bargai ning agreement ( Ñ CBA Ò ) , or by

submitting a request for a hearing before DOAH. On November 20, 2019, the

School Board adopted the Superintendent Ô s recommendations to suspend

Respondent without pay and to terminate her employment. Respondent

timely requested an administrative hearing to challenge Petitioner Ô s

proposed action, and the matter was referred to DOAH to conduct a hearing

pursuant to sections 120.569 and 120.57(1) , Florida Statutes .

A Notice of Hearing was entered scheduling a final hearing on Marc h 16

and 17, 2020. As a result of the onset of the COVID - 19 public health

emergency, and the granting, for good cause shown, of several joint and

unopposed continuances, the final hearing was held on March 23, 2021. At

the hearing, Petitioner presented the testimony of Respondent, Debra

Turnbull; Principal Scott McNichols; Information Technology ( Ñ IT Ò ) witness

Gregory York; Vicki Evans - Paré , d irector of Employee and Labor Relations ,

Palm Beach County Public School District ( Ñ District Ò ); and Emily Goodson , a

former school teacher at Forest Hill Elementary School ( Ñ Forest Hill Ò ) , via

deposition testimony. Respondent testified on her own behalf at the hearing

and called Assistant Principal Sean Higgins as a witness. Petitioner Ô s

Exhibits 1 through 3, 5 through 22, 24 through 27, 29, and 34 were admitted

into evidence. Respondent Ô s Exhibits 2, 5, and 10 were admitted into

evidence.

A one - volume T ranscript of the final hearing was filed on April 29, 2021,

and the parties timely filed p roposed r ecommended o rders. Both p roposed

r ecommended o rders have been duly considered in the preparation of this

Recommended Order. All references to Florida Statutes are to the version in

effect at the time of the incidents giving rise to the proposed termination of

Respondent Ô s em ployment as a teacher.

On June 29, 2021, prior to this Recommended Order being completed,

Ms. Turnbull filed Respondent Ô s Notice of Additional Authority regarding an

arbitration ruling between the Palm Beach County Classroom Teachers

Association and Petit ioner . Petitioner filed a response, Petitioner Ô s

O pposition to Respondent Ô s Notice of Additional Authority , on July 1, 2021.

On July 6, 2021, Respondent filed a Motion to Strike Petitioner Ô s Improper

Argument. Based upon the undersigned Ô s review of the n ot ice , r esponse , and

motion to strike , the n otice was not relied upon in the preparation of this

Recommended Order for the reason that the arbitration ruling, not

something that the undersigned is even required to accept as precedent,

relates primarily to a verbal reprimand being untimely issued and not placed

in the employee Ô s personnel file within 45 days of its issuance. Since the only

verbal reprimand described in the current matter was not used as a step in

the progressive discipline of Ms. Turnbull, thi s supplemental authority is not

directly relevant to the issues before the undersigned and will not be relied

upon in the findings and conclusions that follow.

F INDINGS OF F ACT

1. The School Board is the constitutional entity authorized to operate,

contro l, and supervise the District. Pursuant to Article IX, section 4(b) of the

Florida Constitution, and section 1001.32, Florida Statutes, Petitioner has

the authority to discipline employees pursuant to section 1012.22(1)(f) ,

Florida Statutes .

2. Respondent is an experienced teacher who has been trained in the

proper method of interacting with co - workers and students, exercising best

professional judgment, and following rules, policies , and directives.

3. At all times relevant, Respondent was employed with Pe titioner as a

teacher at Forest Hill and had been assigned there for approximately two

years , initially serving as a second - grade , dual language teacher .

4. At all times relevant, Respondent Ô s employment was governed by the

CBA between the District and the Classroom Teachers Association, School

Board p olicies, and Florida law.

5. Respondent was notified , by a Notice of Recommendation for

Termination of Employment, dated and acknowledged by her on October 29,

2019, that she was being recommended for a 15 - day suspension and

subsequent termination due to : (1) Failure to Exercise Best Professional

Judgment ; (2) Gross Insubordination ; and (3) Continued Failure to Follow

Policy/Rule or Directive , when she screamed and yelled at her students. An

Administrative Comp laint, detailing the charges , was served on Respondent,

through her attorney , on December 9, 2019.

6. A few months after being assigned to the dual language class,

Respondent was moved to a position in the Forest Hill computer lab, which

was part of the fi ne arts rotation for students. As a media specialist,

Ms. Turnbull was responsible for checking library books in and out ; helping

children find books ; reading aloud with children ; helping students with

independent reading ; developing lessons to encourage t he students to interact

with media other than books ; and working in a partnership with the home

room teachers to support them in special projects and research.

7. The students Ô homeroom teacher is not present during the media center

visit by that teacher Ô s students, and routinely drops the students off at the

beginning of the 30 - minute time block, returning to pick them up at the

conclusion of the visit.

8 . On or about April 12, 2019, Ms. Turnbull was working on a project with

third and fourth - grade classes . She had been given broad discretion in

developing a project for the third and fourth graders to celebrate the

Everglades. The project was designed to have the children investigate and do

research on various aspects of the Everglades, then produce a proje ct to

demonstrate what was learned.

9 . Ms. Turnbull decided to have each child do some individual research on

a topic related to the Everglades , followed by their present ing their findings

in a form with which they were comfortable.

10 . She gathered numer ous books about the Everglades, a video or a DVD

to play about the Everglades, and expected that the project would ultimately

end up in an Everglades museum that would be displayed in the media

center for the rest of the school Ô s students to visit and lear n about the

Everglades. She imposed a deadline on the students to have the project

completed within three class sessions.

11. In administering the Everglades project, Ms. Turnbull Ô s intent was

that all of the children would research a topic in which they had a true

interest. She gave an initial class in how to research and suggested some

ideas for project topics . She and the students of each class brainstormed a list

of approximately 15 topics that interested the children, which were placed on

the board fo r all the children to see.

12. Ms. Turnbull explained to the students that she would go around the

room, so that each student could select the topic on which he or she would

like to work, but that no more than four students in each class could work on

a si ngle topic , in order to enhance the learning experience for all by having

more topics covered.

13. Ms. Turnbull tallied the number of students who selected each topic,

and , once a topic was chosen by four students, subsequent choosing students

were redirec ted and limited to the other topics, which were ample for the

class sizes.

14. Once the topics were selected and assigned, the classes brainstormed

different types of project presentation s which could be used. Students were

able to produce a diorama, an a dvertising poster, a research report , or other

methods of presenting their projects. Ms. Turnbull used the same rule, that

once four students selected a particular method of presentation, that mode

would be closed. Similar to the selection of topics, Ms. T urnbull tallied the

number of students who selected each presentation method, and , once a mode

was chosen by four students, subsequent choosing students were redirected to

other choices .

15. On April 12, 2019, Ms. Turnbull met with the students from

Ms. Go odson Ô s third - grade homeroom class, who were dropped off at the

media center for their second project session. As they arrived, Ms. Turnbull

directed the students to sit at the media center tables , where she had a

whiteboard set up, and she and the student s began to interact and list the

various Everglades topics which interested them.

16. On that day, the students had recently returned from spring break.

Ms. Turnbull explained that all teachers know that , after spring break ,

students are looking toward s th e end of the school year and are not always

focused. She felt that , as s ometimes happens , Ñ they were just not with me

that day. Ò They were somewhat uncooperative and talking to each other,

rather than listening to what she was saying.

17. Ms. Turnbull had never had a particular problem with that class. It

was one of the classes that she looked forward to seeing because they Ñ had a

good time together and got things accomplished. Ò However, on that day, the

students were not following the directions she was gi ving them with respect

to choosing the topic for their projects and then choosing their mode of

presentation for the topic.

18. Ms. Turnbull gave Ms. Goodson Ô s students specific directions that no

more than four people could choose the same project and th at , once there

were four students who had selected a particular topic or project , that topic or

project was no longer in play , and the next students who chose had to select

something else.

19. The students were not paying attention, and , when somebody tri ed to

be the fifth or sixth person to choose the same topic, Ms. Turnbull would

again tell the selecting student that there could be no more than four in a

grouping and pointed to the board where the students could see four tally

marks next to that topic. She would explain that the topic had closed and

that something else had to be chosen. Soon thereafter, it would happen again

with another student. When she had gone through the entire class , and when

the tally marks were totaled, the numbers did n o t match, mean ing that some

students had n o t even made their selections .

20. Gregory York , the IT person assigned to Forest Hill since 2004 or

2005 , is responsible for fixing all tech nical problems at the school. Mr. York

testified that he was in the media center o n April 12, 2019, to discuss a repair

issue with Respondent when he heard her yelling and screaming at a student

who had raised her hand. Mr. York further testified that he and Ms. Turnbull

Ñ got into a little shouting match as well [when he explained why h e could not

fix her VCR], so [he] just left. Ò He described Respondent Ô s tone of voice as a

Ñ very high - pitched tone. Aggravated. È Loud and upset. Ò He specifically

recalled a particular incident with one student as follows:

But the one that I kind of recall was with that one

particular student when direction was given to

raise their hand and when she raised the hand, I

guess the answer wasn Ô t good enough and it just

got È it wasn Ô t just -- I don Ô t know, I don Ô t know

what word to use, but it was just È I just felt like

the student was just following directions and it

seemed like she just got in trouble for following

directions, from me, that Ô s all I Ô m saying .

21. Mr. York admitted , on cross - examination, that Ñ at the beginning, I

don Ô t recall the whole convers ation because I was too focusing [ sic ] with the

IT person and then as I -- as we -- as I settled down, that Ô s when I can pretty

much hear -- not hear, but I can see the environment and the tone has

changed and that Ô s what I remember. Ò He did not remember w hat was being

said when he claimed that the tone changed.

22. Mr. York also remembered, on April 12, 2019, that a student raised

her hand to ask a question. He did not recall the entire conversation, but said

Ñ it was like an upset conversation and everyth ing and the student just

wanted to ask the question and couldn Ô t answer it or whatever... it was just...

just the whole ordeal was just loud. Ò

23. Mr. York said that , after getting yelled at, Ñ to me for following

directions, she did not see -- she seemed a little hurt about it or whatever. Ò

He claimed to Ñ just remember the incident with the one student in particular,

with the student raising their hand and, you know, she was just... It was an

incident of her yelling at the kid and, you know, the kid got sad and

everything like that. Ò

24. Although he did not recall in any detail what was said or being done,

Mr. York claimed Ñ I just felt like the student was just following directions

and it seemed like she just got in trouble for following directions from me,

that Ô s all I Ô m saying. Ò He did not know why the student ra i sed her hand or

what she said.

25. O n cross - examination, Mr. York admitted that the hand raising Ñ had

something to do with voting, and, like I said, I heard that part and I

remember the student ju st following direction, raising their hand and -- ...

raising their hand to speak or maybe vote. I remember that part, the

students raised their hand and she asked the student go ahead. And when

she said what she had to say, it just went bad after that. Ò H e repeated that he

was within ten feet of Ms. Turnbull when this exchange took place, but did

not recall whether Ms. Turnbull was explaining that there were already too

many students who had made th e particular selection .

26. Also on cross - examination, aft er having his memory refreshed with his

prior written statement and deposition testimony, Mr. York admitted that

while he did not recall what Ms. Turnbull was Ñ yelling Ò at the kids, he

recalled her yelling or screaming at Assistant Principal Higgins about books .

27. Ms. Turnbull testified that she was not yelling at the children. She

admitted that the situation was getting a bit annoying and that , as time went

by , and the same situation kept occurring over and over, she became what

she termed , Ñ a little bit more stern. Ò On cross - examination, Ms. Turnbull

conceded that she has a loud voice and that sometimes people misinterpret a

loud voice or enthusiasm as raising her voice. She explained that she was Ñ a

New Yorker, Ò ha ving a style and express ing herself in a way that some

consider Ñ loud, animated, excited and boisterous. Ò

28. Because the media center door is kept locked, teachers returning

for their students typically knock on the door. Ms. Goodson did not knock

on the door, but was somehow let into the medi a center, although she did

not immediately ask for her students to leave the media center while

Ms. Turnbull continued to work with them. Ms . Turnbull could not recall how

long Ms. Goodson observed her students in the media center. Ms. Goodson

recalled and estimated being in the media center for about 30 minutes.

29. Ms. Goodson waited in the media center as Ms. Turnbull continued

beyond the allotted class time with her students. Eventually, Ms. Goodson

indicated that she had to return to her classroom with her students. There

was a brief discussion between Ms. Turnbull and Ms. Goodson as the class

was leaving. Ms. Turnbull asked Ms. Goodson if she would spend time in her

classroom having the students choose topics and methods of presentation, as

she had obs erved that those matters were not completed in the media center

that day. Ms. Goodson , she testified, responded that Ñ they are a low class. Ò

30. Ms. Turnbull assumed Ms. Goodson was refer ring to academic ability,

and responded that , even if they are low, t his was n o t an academic exercise,

but was rather a situation of making a choice and following directions.

Neither teacher was yelling; instead, they were speaking quietly, because the

children were in close proximity to them . Ms. Goodson had never discusse d

her students Ô academic level with Ms. Turnbull until that day. Ms. Turnbull

never thought of the class as a Ñ low class. Ò She would have approached the

lesson differently had Ms. Goodson advised that she believed her class was

incapable of following two - s tep or three - step directions. Ms. Turnbull felt that

Ms. Goodson spoke about her students as a Ñ low class Ò in an effort to explain

or excuse their behavior that day .

31. When asked about the allegation that she yelled at Mr. Higgins when

he was in the medi a center while Ms. Goodson and her class were present

that same day, Ms. Turnbull testified that , since he w as an a ssistant

p rincipal, she considered Mr. Higgins to be her boss. She would never yell at

him , she testified . Ms. Turnbull felt that Mr. Higgins was someone to whom

she could talk, and had she thought that he did something wrong with a

book, she would have spoken with him. She did not recall any interaction

with Mr. Higgins that day, or even that Mr. Higgins was in the room.

32. In her deposition testimony, Ms. Goodson recalled that , at some point ,

Mr. Higgins was in the media center. She recalled Ms. Turnbull Ñ went off for

a couple minutes on him, saying next time do this, this and this. That Ô s not

how we do it here, something like that. Ò

33. Mr. Higgins testified during Ms. Turnbull Ô s case. He knows

Ms. Turnbull and was familiar with this case. Mr. Higgins was aware that he

had been identified as having been present in the media center during the

alleged incident of April 12, 2019. He testified th at he did not recall any

incident that took place with Ms. Turnbull. He provided a statement during

the investigation at a time shortly after the alleged incident wherein he

stated that he did not hear anything from Ms. Turnbull on that date. He

recalled b eing asked by Mr. York to assist with repairing the VCR.

34. Mr. Higgins testified that Ms. Turnbull did not yell at him.

Mr. Higgins said that he was not the type of person who would accept being

yelled at without taking some action since he is the a ssist ant p rincipal and

Ms. Turnbull is a media specialist. Mr. Higgins testified that he Ñ returned

the book, kind of finished the tech issue with work and walked out. Ò

Mr. Higgins did not witness any yelling, screaming , or anything like that.

35. Similarly, Ms. Turnbull did not recall any interaction with Mr. York

on that day, although she recalled that some time before that day she had

asked Mr. York to remove a cassette that had gotten stuck in her VCR. She

conceded that , although she did not recall him being there, he could have

been in the media center on that date.

36. Ms. Turnbull recalled the student Mr. York mention ed in his

testimony , although she did not recall her name. The student had a physical

exceptionality and used an assistive device to walk. Ms. Turnbull was not

aware of the student having any intellectual exceptionality. Like Mr. York,

she did not observe the student cry ing at any point, and testified that she did

not observe her upset or with a quivering lip. Ms. Turnbull did not intend to

disp arage or embarrass the student.

37. Scott McNichols is the p rincipal at Forest Hill. He testified that

homeroom teacher Ms. Goodson reported an incident with Ms. Turnbull.

Mr. McNichols had Ms. Goodson complete a witness statement. When

Ms. Goodson provide d the statement, Mr. McNichols contacted the school

district labor relations department. Mr. McNichols spoke to no other

witnesses about the matter.

38. In general, classes at Forest Hill were heterogeneous with all different

kinds of students mixed togeth er. Ms. Goodson Ô s class was not an e xceptional

s tudent e ducation ( Ñ ESE Ò ) class . She had some students with Individual

Education Plans Ñ (IEPs Ò ) , and some without. The level of the students in

Ms. Goodson Ô s class was not advertised to the public. A teacher o n the art

wheel would only know whether Ms. Goodson Ô s class had ESE students if the

ESE contact informed her. Mr. McNichols had no way to know whether the

ESE contact informed a teacher as to the existence and nature of a student Ô s

IEP. Ms. Turnbull specif ically testified that the ESE contact never informed

her of such matters concerning Ms. Goodson Ô s class.

39. Ms. Vicki Evans - Paré is the d irector of Employment and Labor

Relations for the District. She has held that position for a little over two

years and is responsible for handling the CBA and employee discipline, along

with other duties. With regard to employee discipline, it is her office that

investigates and maintains discipline files. After consultation with the

Superintendent regarding his decision as to employee discipline, her office is

responsible for drafting the notice of recommendation to the employee that

the S uperintendent signs.

40. With regard to Respondent Ô s case, Ms. Evans - Paré testified that she is

familiar with Ms. Turnbull Ô s discipline file. As a records custodian for

Petitioner, she provided clear and uncontroverted testimony with regard to

the CBA Ô s provisions for progressive discipline and skipping steps when there

is either an immediate danger to the health, safety , and welfare of s tudents

or district and/or a flagrant and purposeful violation of the rules. As the

d irector , she makes recommendations regarding discipline to the

Superintendent , and she found that Ms. Turnbull had a history of making

inappropriate comments to students a nd acting inappropriately and had

previously been given warning s and reprimands ; such that , skipping steps, to

suspension, was warranted given that prior discipline was not having an

effect at all on Respondent Ô s behavior.

41. Ms. Evans - Paré further testif ied as to the past practice under the CBA

relat ing to the use of a verbal reprimand with written notation relative to

notice of previously given directives. The CBA refers to the personnel file in

Article II , Section B , under Rights and Responsibilities. I n that provision, it

states that Ñ no item can be used to the detriment of an employee unless it is a

part of his/her personnel file. Ò The two verbal reprimands that were offered

into evidence were not being offered for progressive discipline purposes, but

as allowed under Article II , Section M - Discipline of Employees , as follows:

5. Only previous disciplinary actions which are a

part of the employee Ô s personnel file or which are a

matter of record as provided in paragraph #7 below

may be cited.

* * *

7. Except in cases which clearly constitute a real

and immediate danger to the District, a District

employee, and/or a child/children or the

actions/inactions of the employee clearly constitute

flagrant or purposeful violations of reasonable

school r ules and regulations, progressive discipline

shall be administered as follows:

a. Verbal Reprimand with a Written Notation -

Such written notation shall not be placed in the

employee Ô s personnel file maintained at the District

headquarters, but will be pl aced in a file at the

school/department and shall not be used to the

further detriment of the employee after twelve (12)

months of the action/inaction of the employee which

led to the notation. The written notification shall be

maintained at the school sit e/department pursuant

to the District Ô s Records Retention Schedule.

42. Under the discipline section, the verbal reprimands are certainly a

matter of record that is permitted to be cited to, and the phrase Ñ to the

detriment of the employee Ò that is in the section regarding the personnel file ,

was not included. The terms in the CBA regarding the verbal reprimand and

personnel file are not ambiguous. Therefore, they must be given their

ordinary meaning. Rivercrest Cm ty . Ass Ô n, Inc. v. Am . Homes 4 Rent Props .

One, LLC , 298 So. 3d 106, 111 (Fla. 2d DCA 2020).

43. Respondent acknowledged that she was trained in the Code of Ethics

and that she had received previous directives regarding appropriate

interaction with students, failure to exercise best professional j udgment , and

insubordination. She further acknowledged that she had received the

allegations against her in the p re - determination notice and packet.

Respondent has a prior disciplinary history.

44. Respondent received a Written Reprimand on or about Febru ary 24,

2004, while working at Addison Mizner Elementary School, for Ñ actions

that violated the Code of Ethics, Sections 2(a) and (e). Ò At the time,

Respondent inappropriately addressed five students ( three ESE students,

one Ñ 504 Ò student, and a Ñ regular Ò education student) when she Ñ withheld the

Valentine Ô s Day classroom party Ò for Ñ talking, Ò for Ñ forgetting materials , Ò and

for Ñ being off task. Ò

45. Respondent received a Written Reprimand on or about June 5, 2014,

from the Office of Professional Standards at the District for violations of

School Board policies: 5.002, Prohibition of Bullying and Harassment;

3.02, Code of Ethics; 3 .01 , Commitment to the Student, Principle I; and

1.013 , Responsibilities of School District Personnel and Staff; as well as

Flori da Administrative Code Rules 6A - 10.080, Code of Ethics for the

Education Profession in Florida , and 6A - 10.081, Principles of Professional

Conduct f or the Education Profession in Florida. At the time, Respondent

Ñ allowed the students to publicly assess thei r peers, deciding which students

were creating a distraction, and which students were Ó hard - working .ÔÒ

Respondent also Ñ segregated ÔÔ the students by sitting the Ñ distracting Ò

students in the back and also disparaging a student in front of the class ÓÓ by

su ggesting that he should have learned certain skills when he was in

kindergarten. Ò

46. Respondent received a Written Reprimand on or about May 21, 2018,

from the Office of Professional Standards at the District for Ñ [failing] to

exercise [her] best professi onal judgment, ethical misconduct, inappropriate

interaction with students, and for failure to follow policy, rule, or directive. Ò

At the time, Ms. Turnbull said Ñ shut up Ò and Ñ stupid Ò during work hours , and

the students said they perceived it as being dir ected at them. Later on,

during the Pre - Determination Meeting (PDM), Ms. Turnbull stated, Ñ The

District can go to hell , Ò while school administration recalled her saying Ñ You

go to hell. Ò

47. Respondent received a Verbal Reprimand (Written Notation) on or

a bout April 17, 2019, while working at Forest Hill, for her unprofessional

conduct towards employees during duty hours and for failing to exercise her

best professional judgment. At the time, an employee borrowed a S harpie

from Ms. Turnbull Ô s desk. Responde nt reacted by addressing the employee Ñ in

a rude and confrontational manner Ò in the presence of Ñ students and

volunteers. Ò Later , Respondent Ñ went after [the employee] again, continued

berating her (disrespecting the personal space between both of [them]), and

even mocked her. Ò

48. The District Ô s process for determining the discipline to be imposed on

Ms. Turnbull in this matter went through Ms. Evans - Paré, the d irector of

Employee and Labor Relations for the District. She testified about the

practices of h er d epartment and that Ms. Turnbull had received letters and

notices of hearing, reassignments within the D istrict , and a copy of the

investigative report, which was prepared by another individual, who did not

testify in the case.

49. Ms. Evans - Par é testif ied that progressive discipline begins with a

Verbal Reprimand with Written Notation for teachers. It then goes to

Written Reprimand, suspension of any number of days, and then to

termination. She believes that the employer can Ñ jump steps Ò and that the

C B A permitted that practice when there was Ñ a real and immediate danger to

the District, to students, to faculty, to adults, and then also if it Ô s a flagrant

and purposeful violation of the rules. Ò She explained that steps were skipped

in this case

because o f the nature of the allegation.

Additionally, that it was a flagrant and purposeful

violation. This is something that has been going on

for years with making inappropriate comments to

students, acting inappropriately. So [,] at a certain

point you just move forward and progressive

discipline, you can jump steps because the

warnings, the other reprimands, they weren Ô t

having any effect at all. And it was continually

doing harm to students.

50. Ms. Evans - Par é testified that the purpose of progressive discipli ne ,

and all the notices referenced in her testimony , is to ensure that the

employee be told that an action is wrong and that the employee is not to

repeat it, and to provide the opportunity to adjust his or her behavior

accordingly. She admitted that its p urpose was to give a person the

opportunity to be advised that particular conduct was wrong and , therefore ,

be able to avoid it in the future.

51. In her testimony, Ms. Evans - Par é stated that the recommendation of

D istrict administrators that went to the S chool Board in this case was for

termination. She recommended termination, based on the fact that

statements made by Respondent were to disabled ESE students, and what

she termed the number of statements calling them Ñ stupid Ò and Ñ slow. Ò

Ms. Evans - Par é cla imed that Ms. Turnbull Ñ did them over and over. Enough

is enough. Ò

52. Notwithstanding that testimony, Ms. Evans - Par é testified that only

the School Board can suspend a teacher without pay. On cross - examination ,

she made it clear that pursuant to Florida S tatutes, the ultimate decision

maker concerning employee discipline, even beyond herself, is the

S uperintendent, and then , beyond him, the School Board . She did not testify

as to any formal action taken by the School Board in this case and did not

referenc e or provide any document which set forth any action by the School

Board.

C ONCLUSIONS OF L AW

5 3. DOAH has jurisdiction over the subject matter and the parties to this

action pursuant to sections 120.569, 120.57(1), and 1012.33(6)(a).

54. In accordance wit h the provisions of article IX, section 4(b) of the

Florida Constitution, district school boards have the authority to operate,

control, and supervise all free public schools in their respective districts and

may exercise any power except as expressly proh ibited by the state

constitution or general law. A school board Ô s authority extends to personnel

matters and includes the power to suspend and dismiss employees.

§§ 1001.32(2), 1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla. Stat.

55. In Florida, the distr ict superintendent has the authority to make

recommendations for dismissal of school board employees, and the school

boards have the authority to suspend, without pay, school board instructional

staff with professional service contracts for Ñ just cause. Ò § § 1001.42(5),

1012.22(1)(f), and 1012.33(6)(a), Fla. Stat.

56. Ordinarily, when a s chool b oard seeks to terminate a r espondent Ô s

employment, the s chool b oard bears the burden of proving the allegations in

its n otice of s pecific c harges by a preponderance o f the evidence. See McNeill

v. Pinellas Cty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd.

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

Dade Cty. , 569 So. 2d 883 (Fla. 3d DCA 1990). However, where, as here , the

School Board has agreed through collective bargaining to a more demanding

evidentiary standard, it must act in accordance with the applicable contract.

See Chiles v. United Faculty of Fla. , 615 So. 2d 671, 672 - 73 (Fla. 1993); Palm

Beach Cty . Sch . Bd. v. Zedrick Barber , Case No. 15 - 0047 (Fla. DOAH Aug. 31,

2015; PBCSB Oct. 13, 2015).

57. Article II, Section M of the applicable C BA , of which th e undersigned

has taken official recognition , provides that Ñ disciplinary action may not be

taken against an em ployee except for just cause, and this must be

substantiated by clear and convincing evidence which supports the

recommended disciplinary action. Ò Id .

58. The School Board Ô s burden here , accordingly, is to prove the facts

alleged as grounds for suspending and terminating Ms. Turnbull by clear and

convincing evidence. Regarding that standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court developed a

Ñ workable definition of clear and convincing evidence Ò and found that of

necessity such a definition would need to contain Ñ both qualitative and

quantitative standards. Ò The court held that:

[C] lear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

explicit and the witnesses must be lacking in

confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind

of the trier of fact a firm belief or conviction,

w ithout hesitancy, as to the truth of the allegations

sought to be established.

Id .

59. The Florida Supreme Court later adopted the Slomowitz court Ô s

description of clear and convincing evidence. See In re Davey , 645 So. 2d 398,

404 (Fla. 1994). The First District Court of Appeal also has followed the

Slomowitz test, adding the interpretive comment that Ñ [a]lthough this

standard of proof may be met where the evidence is in conflict, È it seems to

preclude evidence that is ambiguous. Ò Westinghouse Elec. Corp . v. Shuler

Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d

1279 (Fla. 1992) ( footnote omitted).

60. The instructional staff member Ô s guilt or innocence is a question

of ultimate fact to be decided in the context of each alleg ed violation.

McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

61. The S uperintendent is statutorily obligated to require compliance and

observance by all personnel of all laws, pol icies, and directives of the School

Board, the State of Florida, and the federal government. Pursuant to

section 1012.27(5), the Superintendent has the authority to recommend to the

School Board that an employee of the School Board be suspended and

termina ted from employment. Only the School Board can ultimately suspend

a teacher without pay:

(f) Suspension, dismissal, and return to annual

contract status . -- The district school board shall

suspend, dismiss, or return to annual contract

members of the instruc tional staff and other school

employees; however, no administrative assistant,

supervisor, principal, teacher, or other member of

the instructional staff may be discharged, removed,

or returned to annual contract except as provided

in this chapter.

§ 1012 .22(1)(f), Fla. Stat.

62. The record in this case establishes that there is just cause to suspend

Respondent from teaching without pay in support of the first charged

violation, Inappropriate Interaction with Student(s), in violation of the

following Schoo l Board p olicies:

a. School Board Policy 3.02(5)(a)(ii), Code of Ethics

- - Exposing a student to unnecessary

embarrassment or disparagement ;

b. School Board Policy 3.02(4)(d), Code of Ethics --

To treat all students and individuals with respect

and to str ive to be a fair person ;

c. School Board Policy 3.02(4)(e) , Code of Ethics --

To create an environment of trust, respect and non -

discrimination, by not permitting discriminatory,

demeaning or harassing behavior to students or

colleagues ;

d. 6A - 10.081(2) (a)1 . , F.A.C., Principles of

Professional Conduct for the Education Profession

in Florida -- Shall make reasonable effort to protect

the student from conditions harmful to learning

and/or to the student Ô s mental and/or physical

health and/or safety ; and

e. 6A - 10.081(2)(a)5 . , F.A.C., Principles of

Professional Conduct for the Education Profession

in Florida -- Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement .

63. School Board Policy 3.02 specifically advises employees that a

violation of th e C ode of Ethics may result in administrative discipline action,

up to and including suspension or dismissal :

2. Application and Enforceability:

This Code of Ethics applies to all Board Members

and employees and extends to guests, invitees, and

volunteers while they are on District Property or

are participating in District - related events.

Violations of this Code of Ethics may result in

administrative or disciplinary action, up to and

including suspension, dismissal, or other actions as

required by law. This Code may apply when the

conduct of the employee occurs on or off District

Property, at a school sponsored event or non - school

sponsored event.

64. On or about October 31, 2018, Respondent electronically signed the

Code of Ethics Acknowledgement Receipt, indicating that she completed the

mandatory annual Code of Ethics training and agreed to comply with School

Board Policy 3.02, Code of Ethics, throughout her employment.

65. The record in this case establishes that there is just ca use to impose

discipline on Respondent Ô s employment as a teacher in support of the second

charged violation, Failure to Exercise Best Professional Judgment , is in

violation of the following School Board Policies:

a. School Board Policy 3.02(4)(a), Code of Ethics --

To provide the best example possible; striving to

demonstrate excellence, integrity and responsibility

in the workplace;

b. School Board Policy 3.02(4)(b), Code of Ethics --

To obey local, state and national laws, codes and

regulations;

c. Sc hool Board Policy 3.02(4)(f), Code of Ethics --

To take responsibility and be accountable for his or

her actions or omissions;

d. School Board Policy 3.02(4)(j), Code of Ethics - -

To create an environment of trust, respect and non -

discrimination, by not permitting discriminatory,

demeaning or harassing behavior of students or

colleagues;

e. 6A - 10.081(1)(b), F.A.C., Principles of Professional

Conduct for the Education Profession in Florida --

The educator Ô s primary professional concern will

always be for the student and for the development

of the student Ô s potential. The educator will

therefore strive for professional growth and will

seek to exercise the best professional judgment and

integrity; and

f. 6A - 10.081(1)(c), F.A.C., Principles of Professional

Conduct for the Education Profession in Florida --

Aware of the importance of maintaining the respect

and confidence of one Ô s colleagues, of students, of

parents, and of other members of the community,

the educator strives to achieve and sustain the

highes t degree of ethical conduct.

66. The record in this case establishes that there is just cause to impose

discipline on Respondent Ô s employment as a teacher in support of the third

charged violation . Gross Insubordination: Continued Failure to Follow Policy ,

Rule or Directives , is a violation of the following School Board Policies:

a. School Board Policy 3.10(6) - - The District

requires its employees to carry out their

responsibilities in accordance to School Board

Policy 1.013 (as may be amended), their job

descriptions and reasonable directives from their

supervisors that do not pose an immediate serious

hazard to health and safety or clearly violate

established law or policy .

b. School Board Policy 1.013(1) -- It shall be the

responsibility of the person nel employed by the

district board to carry out their assigned duties in

accordance with federal laws, rules, state statutes,

state board of education rules, school board policy,

superintendent Ô s administrative directives and

local school and area rules.

67. Respondent Ô s counsel has made a major part of his argument that

various documents that were contained in Ms. Turnbull Ô s employee file are

hearsay and should not be considered when determining the proof of the

matters asserted that happened in the media center on April 12, 2019. He is

correct that many notes and other documents are hearsay that was

unsupported by the author of the statements or were not shown to fall within

an exception to the hearsay rule. The undersigned, however, employing the

progres sive discipline doctrine employed by the District through its CBA,

finds that Ms. Turnbull Ô s actions in the media center, as well as her history of

discipline as evidenced by formal reprimands she received in the past,

support the imposition of discipline here. What remains for discussion is the

extent and duration of such discipline.

68. The CBA between the parties contains a provision for progressive

discipline as follows, in pertinent part:

ARTICLE II RIGHTS AND RESPONSIBILITIES

* * *

SECTION M Ï Discipline of Employees

(Progressive Discipline)

1. Without the consent of the employee and the

Association, disciplinary action may not be taken

against an employee except for just cause, and this

must be substantiated by clear and convincing

evidence , which supports the recommended

disciplinary action.

* * *

5. Only previous disciplinary actions which are a

part of the employee Ô s personnel file or which are a

matter of record as provided in paragraph #7 below

may be cited.

6. Where just ca use warrants such disciplinary

action(s) and in keeping with provisions of this

Section, an employee may be reprimanded verbally

with written notation, reprimanded in writing,

suspended without pay or dismissed upon the

recommendation of the immediate supe rvisor to the

Superintendent. Other disciplinary actions(s) may

be taken with the mutual agreement of the Parties.

7. Except in cases which clearly constitute a real

and immediate danger to the District, a District

employee, and/or a child/children or th e

actions/inactions of the employee clearly constitute

flagrant or purposeful violations of reasonable

school rules and regulations, progressive discipline

shall be administered as follows:

a. Verbal Reprimand with a Written Notation -

Such written notati on shall not be placed in the

employee Ô s personnel file maintained at the District

headquarters, but will be placed in a file at the

school/department and shall not be used to the

further detriment of the employee after twelve (12)

months of the action/ina ction of the employee which

led to the notation. The written notification shall be

maintained at the school site/department pursuant

to the District Ô s Record Retention Schedule.

b. Written Reprimand - A written reprimand may

be issued to an employee when appropriate in

keeping with provisions of this Section. Such

written reprimand shall be dated and signed by the

giver and the receiver with provisions of Article II,

Section B of this Agreement.

c. Suspension Without Pay - A suspension without

pay may b e issued to an employee, when

appropriate, in keeping with provisions of this

Section, including just cause and applicable laws.

The length of the suspension also shall be

determined by just cause as set forth in this

Section. The notice and specifics of t he suspension

without pay shall be placed in writing, dated and

signed by the giver and the receiver of the

suspension. The specific days of suspension will be

clearly set forth in the written suspension notice

which shall be filed in the affected employee Ô s

personnel file in keeping with provisions of

Article II, Section B of this Agreement.

d. Dismissal - An employee may be dismissed

(employment contract terminated) when

appropriate in keeping with provisions of this

Section, including just cause and ap plicable laws.

69. In light of Respondent Ô s disciplinary history, the next step of

discipline , under Article 17 of the CBA, would be suspension without pay.

Ms. Evans - Paré testified, accurately, that the CBA allows for skipping steps

in progressive discip line where the employee Ô s actions are deemed to be

flagrant or purposeful violations of reasonable school rules and regulations or

clearly constitutes a real and immediate danger to the health, safety , and

welfare of the students , a District employee, or t he District .

70. Beginning with the Administrative Complaint filed in this matter ,

continuing through discovery , and culminating with the final hearing , scant,

if any, allegations were set forth to demonstrate that Ms. Turnbull Ô s actions

throughout her te nure as an instructional employee of the District ever rose

to where her conduct Ñ clearly constitute[d] a real and immediate danger to

the District, Ò as set forth in the CBA. Moreover, with the increased

requirement in this District that the specific charg es brought against

instructional personnel must be proven by clear and convincing evidence

(rather than, as in most school districts, a preponderance of the evidence),

Petitioner has fallen short here of proving that Respondent Ô s employment

should be termi nated.

7 1 . However, b ased upon Ms. Turnbull Ô s prior disciplinary history and the

handling of matters witnessed on April 12, 2019, when she raised her v oice

and made direct or implied insults to the students in her c are that day and to

the IT employee, Mr. York, the next level of progressive discipline is

warranted, namely, a suspension without pay. This is further supported by

an additional V erbal R eprimand (written notation) on April 17, 2019, not

even a week following the most recent one leading to this m atter coming

before DOAH. While Respondent clearly needs to remedy the perception or

reality that her actions can be explained by the fact that she is a Ñ loud Ò

person, she must take responsibility for the fact that her past transgressions

have all related to personal interactions with colleagues and students. Her

actions on April 12, 2019 , however, d id not rise to the level where Ñ skipping

steps , Ò under the progressive discipline provision of the CBA, is warranted,

especially where, under this particular CB A, the burden of proof on

Petitioner is to prove the allegations against Respondent by clear and

convincing evidence.

7 2 . The number and age of the prior disciplinary actions taken against

Respondent, coupled with the fact that the incident complained of h erein was

a single incident, not a series of incidents over a short period of time, do not

provide clear and convincing evidence of misconduct by Respondent that

should result in skipping progressive discipline steps, which would result in

termination of h er employment. In short, there was no clear and convincing

evidence produced by Petitioner t o support a departure from the principles of

progressive discipline adopted in the CBA . A 15 - day suspension , without pay,

and a restoration of Respondent Ô s addition al lost back pay and benefits is

both the more appropriate and reasonable resolution of this matter , than the

suspension plus termination of employment sought by Petitioner , and that is

supported by app lication of the terms of the CBA .

R ECOMMENDATION

Base d on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Palm Beach County School Board enter a final order

finding that Ñ just cause Ò exists to discipline Ms. Turnbull , by upholding her

prior suspension, without pay, for 15 - da ys, and restoring all benefits and

back pay that have been lost/withheld since November 21, 2019.

D ONE A ND E NTERED this 7th day of July , 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT S. C OHEN

Administrative Law Judge

1230 Apalachee Parkway

Talla hassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of July , 2021 .

C OPIES F URNISHED :

Jean Marie Middleton, Esquire Matthew Mears, General Counsel

V. Danielle Williams, Esquire Department of Education

School District of P alm Beach County Turlington Build ing, Suite 1244

Office of the General Counsel 325 West Gaines Street

3300 Forest Hill Boulevard , Suite C - 331 Tallahassee, Florida 32399 - 0400

West Palm Beach, Florida 33406 - 5869

Richard Corcoran Mark S. Wilensky, Esquire

Commissioner of Education Dubiner & Wilensky, LLC

Department of Education 1200 Corporate Center Way , Suite 200

Turlington Building, Suite 1514 Wellington, Florida 33414 - 8594

325 West Gaines Street

Tallaha ssee, Florida 32399 - 0400

Donald E. Fennoy , II, Ed.D., Superintendent

School District of Palm Beach County

3300 Forest Hill Boulevard, Suite C - 316

West Palm Beach, F lorida 33406 - 5869

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.