20-002605TTS Marion County School Board vs. Maria Acosta Status: Closed Recommended Order on Wednesday, November 18, 2020.

Summary: Petitioner proved it had just cause to discipline Respondent.

P RELIMINARY S TATEMENT

On March 10, 2020, Dr. He idi Maier, then - Marion County Superintendent

of Schools, issued the Complaint, imposing on Respondent a written

reprimand and five - day suspension without pay for misconduct alleged

therein. Respondent timely filed a Petition for Administrative Hearing to

c ontest the discipline, which was referred to the Division of Administrative

Hearings (“Division”) on June 8, 2020, for the assignment of an

administrative law judge, pursuant to the Board’s contract with the Division.

The case was originally scheduled f or final hearing live in Ocala, Florida ,

on September 10, 2020, but was rescheduled to a hearing via Zoom

conference on September 10, 2020.

At the final hearing, Petitioner offered the testimony of Leah Grace,

former school counselor at Dun n ellon Middle S chool (“Dunnellon Middle”);

Julia Roof, paraprofessional at Dunnellon Middle; Michelle Reese, guidance clerk at Dunnellon Middle; Delbert Smallridge, principal of Dunnellon

Middle; Dawana Gary, the Board’s director of equity and ethics; Jaycee Oliver, the Board’s executive director of employee relations; and student L.L.

Petitioner introduced Exhibits 1, 3 A through 3E, and 4 through 7, which

were admitted in evidence.

Respondent testified on her own behalf and proffered the testimony of

Christopher McLain, whose testimony was disallowed. Respondent

introduced Exhibits 2 through 6 and 8, which were admitted in evidence.

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

September 21, 2020. The undersigned granted the parties request to fi le

proposed recommended orders 30 days after the date the Transcript was

filed. The parties timely filed Proposed Recommended Orders , which have

been considered by the undersigned in preparation of this Recommended

Order.

Unless otherwise noted, all refer ences to the Florida Statutes are to the

2019 version.

F INDINGS OF F ACT

1. Petitioner is the constitutional entity authorized to operate, control,

and supervise the public schools within Marion County. See Art. IX, § 4(b),

Fla. Const.; § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline

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

2. At the time of the alleged incident, Respondent was employed as a

testing coordinator at Dunnellon Middle, pursuant to a profess ional services

contract with the Board. During the 2018 - 2019 school year, Respondent

served as a dean of discipline at Dun n ellon Middle. As dean , she had dealt

with discipline of students possessing drugs on campus, as well as students

suspected of smoking marijuana either on a school bus or at the school bus

stop.

3. Leah Grace is a guidance counselor at Dun n ellon Middle. Michelle

Reese is the guidance office clerk.

4. On January 30, 2020, student L.L. came to the guidance office and told

Ms. Reese he want ed to speak with Ms. Grace about enrollment in a magnet

program for the following school year. However, when L.L. entered

Ms. Grace’s office, he sat down and began crying. L.L. confided in Ms. Grace

that he “had something he was not supposed to have at sch ool.” L.L. stated that he did not know who to trust.

5. L.L. was distraught and Ms. Grace was unable to calm him. She

decided to contact his mother to pick him up from school. Aware that L.L.’s mother does not speak English, Ms. Grace sought help from some one at the

school who spoke Spanish. Respondent speaks Spanish.

6. Ms. Grace contacted Respondent and asked her to come to the guidance

office to help her with a student. When Respondent arrived at Ms. Grace’s

office, she observed L.L. visibly upset, sobb ing with his face in his hands,

rocking back and forth. Ms. Grace relayed to Respondent what L.L. had

shared with her — that he “had something he was not supposed to have at

school.”

7. Respondent recognized L.L. and asked him three questions in quick

succe ssion: Do you have a weapon? L.L. shook his head “no” in response ; Do

you plan to hurt yourself or someone else? L.L. shook his head “no” in

response ; and Do you have weed? L.L. nodded his head in response to the

third question, indicating that he did have marijuana. L.L. confided that

another student, D.G., had given the marijuana to L.L. in the cafeteria that

morning to “hold on to” for him. L.L. had grown anxious during the school

day about having the drugs in his possession and had come to the guidance

office for help.

8. When L.L. nodded in the affirmative that he had weed on him,

Respondent stated something to the effect of “that is no reason to go home.” Respondent suggested L.L. just flush the marijuana down the toilet. L.L.

promptly went into a smal l restroom attached to Ms. Grace’s office, flushed

the toilet, washed his face , and began to compose himself. Afterward,

Respondent told L.L. he needed to find better friends.

9. As Respondent was no longer needed for translation, she left the

guidance off ice and returned to her duties in the testing lab.

10. Ms. Grace allowed L.L. to go to his next class, a grade - recovery course

for which he was already late. Julia Roof teaches the class and had been

concerned that L.L. was not in class on time. L.L. arriv ed at the classroom

toward the end of the class period, and Ms. Roof observed that L.L. was

upset. L.L. initially insisted that he was “fine,” but Ms. Roof pressed him

because he was visibly upset. L.L. confided in Ms. Roof about the incident. He

admitted that he had marijuana in his possession at school that day, that

another student had asked him to hold it, and that he had been to the

guidance office where the marijuana had been “flushed.”

11. Neither Ms. Grace nor Respondent reported the incident to th e school

resource officer or anyone in school administration. Nor did either of them

notify L.L.’s mother.

12. Ms. Roof reported the incident to Delbert Smallridge, p rincipal at

Dun n ellon Middle, at the end of the school day.

Principal Smallridge’s Invest igation

13. Mr. Smallridge has served as p rincipal at Dunnellon Middle for nine

years, and has worked in the Marion County school system in various

positions for 31 years.

14. Ms. Roof reported the incident to Mr. Smallridge after school at car

pickup. Bef ore he left the school for the day, Mr. Smallridge contacted the

school resource officer to notify him that there was a situation with drugs on

the school campus that day. He also notified Brent Carson, director of

professional practices (i.e., human resou rces) for the Marion County School

District (“the District”), with the limited information he had obtained.

15. The following morning, Friday, January 31, 2020, Mr. Smallridge

began an internal investigation into the incident. He first interviewed L.L., in the presence of Ms. Roof ; took notes of the events L.L. related ; reviewed the

notes verbally with L.L. ; as well as having L.L. re ad them to himself.

Afterward, he asked L.L. to sign his name at the bottom of the page as his

statement of the incident.

16. The next person he interviewed, Ms. Reese, came to him directly. She

reported to Mr. Smallridge that she had information she felt he should know. She told Mr. Smallridge that Ms. Grace had confided in her that morning that she had allowed a student to flus h marijuana in plastic bags down the

toilet in her office the prior day, and that she was concerned that they may

come back up or otherwise cause a plumbing problem. Ms. Reese provided and signed a written statement to that effect.

17. Mr. Smallridge also interviewed, and took a written statement from,

Ms. Roof regarding the incident. Before the school day ended, he also spoke to

Mr. Carson, who instructed him to complete the school - level investigation by

interviewing and getting written statements from Res pondent and all

witnesses, and do his best to determine what had happened.

18. Mr. Smallridge interviewed Ms. Grace the following Monday,

February 3, 2020, in the presence of his confidential secretary.

Mr. Smallridge took notes of his interview with Ms. G race, and Ms. Grace

provided a written statement of her own. During hi s interview with

Ms. Grace, Mr. Smallridge noted that “both [Ms. Grace and Respondent] were

aware [L.L.] had drugs.” In Ms. Grace’s written statement, she stated that

she “couldn’t remem ber” whether it was she or Respondent who told L.L. to

flush the marijuana, “but I think it was me.” She stated that L.L. went to the

small bathroom attached to her office, “then came out and told me he flushed it, bag and all.” Ms. Grace’s statement also confirmed that both she and

Respondent were in her office when L.L. went to the bathroom.

19. Ms. Grace later resigned from Dunnellon Middle. On August 26, 2020,

after her resignation, she gave a second written statement regarding the

incident. In that sta tement, Ms. Grace claimed responsibility for telling L.L.

to flush the marijuana and called it a “momentary lapse in judgement.” She

felt sorry for L.L. and did not want him to get in trouble, either with the

school or with law enforcement.

20 . Mr. Smallri dge also interviewed Respondent, who stated that, when

L.L. nodded his head in response to her question, “Do you have weed,” she understood L.L. to mean that he had marijuana in his system, not on his

person. Further, she claimed to have left Ms. Grace’s o ffice shortly after she

asked those questions and was not aware that L.L. had drugs on his person

or that he flushed drugs in Ms. Grace’s office. Respondent also gave

Mr. Smallridge a written statement.

21. In her written statement, Respondent described th e events o f

January 31, 2020. She said that when she first observed L.L. in Ms. Grace’s

office, “The kid seemed sick, rocki ng, sobbing and not speaking.” She

continued, “I thought he might be intoxicated as to why he would want to go

home and not to the nu rse. I asked him if he had weed as if in smoked it, had

it in his system. He nodded and continued to cry. I said, that is no reason to

go home.”

22. Mr. Smallridge gathered all the statements and notes from his

investigation, scanned and sent them to Mr. C arson.

23. Jaycee Oliver is the executive director of employee relations for the

District and is responsible for disciplinary issues with District employees,

including hearings, grievances, mediations, and arbitrations. Ms. Oliver

reviewed the documents fr om Mr. Smallridge, and discussed the incident

with Mr. Carson and Mr. Smallridge. Ms. Oliver determined that the incident

warranted a District - level investigation.

District Investigation and Discipline

24. The District investigation was conducted by Dawana Gary, director of

equities and ethics, who worked with Tyson Collins, an investigator in her department. Ms. Gary was present for the interviews of both Ms. Grace and

Respondent. Mr. Collins interviewed the remaining witnesses. Their

interviews were recor ded. Following the investigation, Ms. Gary prepared an

investigative report containing written findings and conclusions.

25. Based on the investigation, Ms. Gary concluded that both Respondent

and Ms. Grace violated Florida Administrative Code Rule 6A - 10.0 81(2)(a)1.,

which provides that the educator’s obligation to the student requires that the

educator “[s]hall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical

health and/or safe ty.” She also concluded that both Respondent and

Ms. Grace violated School Board Policy 6.27 I., which requires school board

employees to comply with r ule 6A - 10.081.

26. Ms. Gary sent her investigative report to Ms. Oliver, along with a

recommendation tha t both Ms. Grace and Respondent receive a written

reprimand, three - day suspension without pay, and mandatory training.

27. Ms. Oliver reviewed the report and recommendation, and was

surprised the recommendation was so lenient. Ms. Oliver characterized the

violations as “egregious” and recommended to the superintendent that both

Respondent and M s. Grace be terminated.

28. At the final hearing, Ms. Oliver testified that Respondent’s behavior

was egregious because, not only did she fail to report the incident or take

other measures to protect L.L., but also that allowing the student to dispose

of the drugs prevented a proper investigation into distribution of drugs on

campus. She maintained that Respondent’s behavior allowed both D.G., who

was allegedly sellin g drugs on campus, and students who may purchase or

otherwise obtain drugs from him, to remain in harm’s way. Without the

drugs themselves as evidence, any potential investigation was jeopardized.

29. Ms. Oliver discussed the recommendations for discipline at length

with the superintendent. The superintendent made the final decision to

impose a written reprimand and a five - day suspension, and require

Respondent to take a course on “Reasonable Suspicion Drug Training” upon her return to work.

30. L.L.’s stat ement that Respondent told him to flush the drugs is the

only credible evidence on which to base a finding that Respondent did in fact do so.

1 Respondent attempted to discredit L.L.’s testimony by introducing

evidence (all of which was hearsay) that L.L. h ad previously been untruthful

to teachers and had a penchant for drama. This evidence was neither credible nor reliable. L.L.’s testimony was clear: he acknowledged he had “weed ; ” he

showed Respondent and Ms. Grace the weed ; Respondent instructed him to

1 L.L.’s statement is an exception to the hearsay rule as an admission of a party opponent.

See § 90.803(18), Fla. Stat.

fl ush the weed ; and he flushed the weed down the toilet in Ms. Grace’s

private restroom.

31. Ms. Grace’s testimony that she was the one who instructed L.L. to

flush the marijuana is also not accepted as credible. Ms. Grace’s original

statement to Mr. Smallri dge (repeated in her first written statement) that

she could not remember whether it was she or Respondent who told L.L. to

flush the marijuana, was simply not credible. A middle school guidance counselor in her situation would have a clear memory of instr ucting a student

to flush drugs down the toilet. Likewise, her memory that a teacher

instructed the student to do so in her presence would likewise be significant

enough to remember clearly.

32. Further, Ms. Grace and Respondent were close colleagues, freq uently

having lunch together, and socializing outside of school on at least one

occasion. Ms. Grace’s subsequent statement accepting responsibility for

telling L.L. to flush the drugs was likely an attempt to protect Respondent.

When she gave her second st atement, Ms. Grace had already resigned from

Dun n ellon Middle; therefore, she could not be disciplined for falsely accepting

responsibility for instructing L.L. to flush the marijuana.

33. Finally, Ms. Grace’s testimony at the final hearing was too well -

r ehearsed to be credible. Notably, Ms. Grace had a well - rehearsed

explanation for why Respondent would not have heard her tell L.L. to flush

the drugs while they were sitting in her very small office, and she inserted

that explanation in answer to a wholly - unrelated question. She attempted to

explain Respondent’s state of mind, which she could not have known. In sum,

Ms. Grace’s testimony was unreliable and was insufficient to establish that

she, rather than Respondent, instructed L.L. to flush the marijuana down the

toilet.

34. Respondent’s testimony that she understood L.L. to mean he had

marijuana in his system, rather than on his person, was not credible. L.L.

had stated that he “had something he wasn’t supposed to have at school.”

Respondent asked him if he “had weed” after asking him if he “had a

weapon,” clearly seeking knowledge of what he possessed at school that he

knew was off limits. Further, L.L.’s testimony that he showed Ms. Grace and

Respondent the weed is accepted as true.

35. Even if Responde nt’s testimony that she understood L.L. to mean that

he had marijuana in his system was accepted as true, that fact, coupled with

her description of him as appearing ill, and possibl y intoxicated, 2 created a

responsibility to take some step to protect the student’s health and well -

being. If she understood L.L. to mean that he had ingested marijuana, and he appeared to her to be ill, her statement “that is no reason to go home,” was

completely unprofessional. L.L.’s mother should have been contacted to pick

him up from school, and administration should have been notified so that the

situation could be avoided in the future to secure L.L.’s health and safety, as well as other students potentially involved.

C ONCLUSIONS OF L AW

36. The Division has jurisdiction over the subject matter of and parties to

this case, pursuant to section 1012.33(6) and the Division’s contract with

Petitioner.

37. Petitioner seeks to discipline Respondent, and has the burden of

proving the allegations set forth in its Complaint by a pr eponderance of the

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

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

of Manatee Cty. , 19 So. 3d 351 (Fla. 2d DCA 2009), rev. denied , 29 So. 3d 1118

(Fla. 2010); Cisneros v. Sch. Bd. of Miami - Dade Cty. , 990 So. 2d 1179 (Fla.

3d DCA 2008).

2 Respondent testified that she should not have used the word “intoxicated” to desc ribe L.L.’s

behavior because she “did not have enough information to be able to use that word,” is also

rejected as unreliable. Her written statement given in close proximity to the date of the

incident is more reliable and is accepted as true.

38. Rule 6A - 10.081(2)(a)1. provides that an educator “[s]hall make

reasonable effort to protect the student from conditions harmful to learning

and/or to the studen t’s mental and/or physical health and/or safety.”

39. School Board Policy 6.27 I. requires school board employees to comply

with r ule 6A - 10.081.

40. Respondent violated School Board Policy 6.27 when she instructed

L.L. to flush marijuana that he had in hi s possession, and failed to report the

incident to school administration and L.L.’s parent or guardian. Even if

Respondent believed that L.L. had marijuana in his system, rather than on

his person, she still violated the policy by failing to take measures to protect

his health and safety. Respondent scoffed, stating “that is no reason to go

home,” and allowed the student to stay at school and carry on with his

classes. Further, whether Respondent believed L.L. to be in possession of

marijuana or to have ing ested marijuana, she was well - aware of the

disciplinary consequences applicable to both situations based on her prior

role as disciplinary dean.

41. By the same conduct, Respondent violated r ule 6A - 10.081(2)(a)1.

42. Petitioner established, by a preponder ance of the evidence, just cause

for disciplining Respondent as specified in the Complaint.

R ECOMMENDATION

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

R ECOMMENDED that the Marion County School Board enter a final order

upholding both the charges and the discipline imposed against Respondent,

Maria Acosta.

D ONE A ND E NTERED this 1 8 th day of November , 2020 , in Tallahassee,

Leon County, Florida.

S UZANNE V AN W YK

Administrative Law Judge

Division of Administrative Hearings

The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 8 th day of November , 2020 .

C OPIES F URNISHED :

Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

Suite 100

1477 West Fairbanks Avenue

Winter Park, Florida 32789

(eServed)

Eric J. Lindstrom, Esquire

Egan, Lev, Lindstrom & Siwica, P.A.

Post Office Box 5276

Gainesville, Florida 32627

(eServed)

Heidi S. Pa rker, Esquire

Egan, Lev, Lindstrom & Siwica, P.A.

2nd Floor

231 East Colonial Drive

Orlando, Florida 32801

(eServed)

Dr. Diane Gullett, Superintendent

Marion County School Board

512 Southeast 3rd Street

Ocala, Florida 34471

Richard Corcoran

Commissio ner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallah assee, Florida 32399 - 0400

(eServed)

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 ag ency that will issue the Final Order in this

case.