failing to properly report suspected child abuse. Price requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge
The parties entered into a Prehearing Stipulation in which they agreed to the facts contained in Section E of the Prehearing Stipulation. Those agreed facts are contained in this Recommended Order.
At the final hearing, Petitioner called the following witnesses: Robert Walton, Patrick Galligan, Lee Allen Hooks, Carolyn Horne, Shannon White, Darria Brooks, Shavontay Brown, Joanne Kaiser, and Ryan Spence. Respondent testified in her own behalf and called Sherry Sweeting, Jacquelyn Batista, and Milton Perry as her witnesses. Joint Exhibits numbered 1-12 were admitted in evidence. Petitioner's Exhibits numbered 1, 2, 4, 5,
7, 8, 10-12 were admitted in evidence. Respondent's Exhibits numbered 1-3 were admitted in evidence.
At the final hearing, the parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The Transcript was filed on March 4, 1999. On
March 5, 1999, the parties filed a Joint Request for Continuance, requesting that the time for filing proposed recommended orders be extended to March 23, 1999. The request was granted by Order dated March 18, 1999. On March 22, 1999, Petitioner filed an Unopposed Motion for Enlargement of Time, requesting that the time for filing proposed recommended orders be extended to
March 30, 1999. The motion was granted by Order dated March 24, 1999. The parties timely filed their Proposed Recommended Orders, which have been considered in rendering this Recommended Order.
On May 10, 1999, Respondent filed a Motion to Supplement Record, attaching a verdict in which Maurice LeFlore was found not guilty of lewd assault against Shannon White. The motion is denied. The issue in this proceeding deals with the actions Price took as a result of her investigation, not whether
Mr. LeFlore was actually guilty of lewd assault.
Respondent, Rebecca Price (Price), has been an educator for 33 years during which she was employed by Petitioner, Palm Beach County School Board (School Board), for 27 years. At all times pertinent to this proceeding, Price was a Guidance Counselor at John F. Kennedy Middle School (JFK), employed by the
School Board pursuant to a Professional Service Contract.
In August 1997, Heywood Howard, a former Assistant Principal at JFK, introduced Price to Maurice LeFlore (LeFlore), who had recently been hired by the School Board as a band instructor at JFK. Mr. Howard told Price that LeFlore was a fellow "Rattler," an alumnus of Florida Agricultural and Mechanical University.
Because LeFlore had been introduced by Mr. Howard, and was a fellow alumnus and co-worker, Price rented a room to him from August 13, 1997, until the date of LeFlore's arrest in March 1998.
Price had a close relationship with LeFlore, but it was not of a romantic nature. She was his landlord, and they occasionally shared meals and watched television together in the evenings. Because LeFlore did not have either a car or a driver's license when he began renting a room from Price, he rode to and from work with Price. It was common knowledge that LeFlore was living at Price's house.
On February 27, 1998, JFK students Darria Brooks, Shavontay Brown, and Carolyn Horne discussed with Sherry Sweeting, a teacher at JFK, rumors relating to LeFlore. During the course of the conversation, the students said that they heard that LeFlore had "come onto" a female student in an inappropriate manner. Ms. Sweeting reported the conversation to Lee Hooks, her superior and the Department Chair of Fine Arts at JFK.
The principal was not on campus at the time that
Mr. Hooks talked with Ms. Sweeting. Mr. Hooks tried to contact the assistant principal, who also was not available. Since some of the students who had talked to Ms. Sweeting were in the eighth grade, Mr. Hooks called Price, who was a guidance counselor for the eighth grade, to his office and told her that he had a situation that he thought she needed to look into. Price went to Mr. Hooks' office, and he told her what Ms. Sweeting had said.
Mr. Hooks told Price that she could use his office to talk with the students.
Mr. Hooks called Ms. Sweeting and told her to send the students to his office. When Shavontay Brown, Darria Brooks, and Carolyn Horne came to Mr. Hooks' office, he left to teach his class. Mr. Hooks returned to his office for a few seconds during the interview to retrieve some teaching materials.
Mr. Hooks did not contact the principal concerning the rumors nor did he call the child abuse hotline. He was not disciplined for failure to report child abuse.
Price asked the students to tell her what they had heard. Carolyn Horne told Price that LeFlore liked to flirt. Darria Brooks told Price that according to Shannon White, LeFlore had pushed Ms. White up against the wall in his office and had pressed himself against her. Shavontay Brown told Price that she had heard rumors that LeFlore had rubbed against Ms. White while he and Ms. White were in the band room.
Price asked the students if they had seen the incident themselves, and they responded that they had not. She told them that they should not be saying things without knowing if they were true and that students could be suspended for spreading rumors. She essentially told them that the matter was none of their business.
Price had Ms. White sent to Mr. Hooks' office to discuss the rumors. Price told Ms. White and the other students that it was a serious matter. She said that LeFlore, who had just graduated, was like a son to her and that such rumors could result in LeFlore losing his job. Ms. White said that LeFlore had pushed her up against the wall and put his hands over hers but that he was just playing. Ms. White told Price that another student, Ryan Spence, was in LeFlore's office playing on the computer and witnessed the incident.
According to Price, when she first asked Ms. White if anything had happened, Ms. White said, "sort of."
Price told Ms. White that if LeFlore had done the things that were rumored he would have to be punished and Price would have to tell Ms. White's mother what had happened.
Ms. White then told Price that nothing at all had happened.
Price had Ryan Spence brought to Mr. Hooks' office for an interview while Ms. White was still present. Ms. Spence told Price that she was present in LeFlore's office when she saw
Ms. White and LeFlore walk into the office. LeFlore pushed
Ms. White up against the wall. While Ms. White was facing the wall with her palms flat on the wall, LeFlore rubbed the front part of his body against her. Price denies that Ms. Spence told her LeFlore had pushed Ms. White against the wall and rubbed his body against Ms. White.
Price testified that she asked Mr. Hooks to be a witness to Ms. White's statement that nothing happened.
Mr. Hooks denies that he witnessed such a statement. Mr. Hooks was told by Price in the presence of the students that there was nothing to the incident and none of the students interviewed said anything to the contrary.
During her interview with students Brooks, Horne, and Brown, Price was upset and angry. She raised her voice at the students, but did not yell or shout. Price had calmed down by the time Ms. White and Ms. Spence came to Hooks' office to be interviewed. Mr. Hooks, who was teaching in the classroom next to his office, did not hear Price shout during the interview.
Jacquelina Batista, a guidance counselor at JFK, was told by a student that LeFlore had made inappropriate contact with Ms. White. However, Ms. Batista was not told that there was an eyewitness to the incident. She in turn told Lisa Barry, who was Ms. White's guidance counselor. Ms. Barry agreed to talk with Ms. White. Ms. Batista did not contact the principal nor did she report the rumor to the abuse hotline. No disciplinary actions were taken against Ms. Batista.
The Monday following her conversation with Ms. Batista, Ms. Barry asked Ms. White how things were going and if there was anything that she needed to talk about. Without going into anything specific, Ms. Barry said that she had heard about a situation and thought that Ms. White might want to talk about it. Ms. White said that she had already talked to Price and that it was just rumor and gossip. Ms. Barry never specifically mentioned LeFlore during the conversation. Ms. Barry reported her conversation with Ms. White to Mr. Gattozzi, who was the guidance coordinator and Ms. Barry's supervisor. Mr. Gattozzi reported the conversation to the principal. Ms. Barry did not know there was an eyewitness to the incident between LeFlore and Ms. White; she believed that nothing had happened. She was not disciplined.
Price stated that she saw Ms. Barry and Ms. White talking and that later on the same day she stopped Ms. Barry in the hallway and asked Ms. Barry what Ms. White had said. According to Price, Ms. Barry assured her that Ms. White had said nothing happened. Ms. Barry denies that she ever discussed
Ms. White with Price.
Ms. White changed her story after Price began questioning her because she "didn't want the whole situation to get out because---I just wanted to let it go. And I didn't want it to be all out. So I was just saying nothing happened, because I didn't want everybody to start finding out like they did."
On March 20, 1998, another student reported that she had been abused by LeFlore. The Riveria Beach Police and School Police conducted an extensive investigation. LeFlore was arrested on eleven counts of lewd assault and confessed to lewd assault on four students, of whom Ms. White was not one.
Article II, Section M of the Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, provides:
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.
* * *
7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows:
Verbal Reprimand With A Written Notation. . . .
Written Reprimand. . . .
Suspension Without Pay. . . .
Dismissal. . . .
The School Board's policy D-5.30 involving suspected cases of child abuse provides:
(1) All school personnel, including teachers, administrators, and noninstructional staff, who know, or have reasonable cause to suspect that a child is an abused or neglected child shall report this information to the principal of the
school center. . . . The principal shall report such knowledge or suspicion to the Department of Health and Rehabilitative Services (HRS).
* * *
(6) Any employee who knowingly and willfully fails to report such case as required . . . may be subject to disciplinary action by the School Board and may be guilty of a misdeamanor [sic] of the second degree, punishable as provided by law.
In March 1997, Price had been provided with an "Educator's Resource Manual on Child Abuse," which provides:
Reporting child abuse/neglect
Your role as a school teacher or official makes you a mandated reporter of child abuse and neglect. This manual gives you information on how to recognize various types of abuse and neglect and behaviors of children that may signal they are being abused and/or neglected. The following is a discussion of the specifics of reporting abuse and some commonly asked questions.
When should I report?
Whenever you know or suspect that a child is being abused or neglected. You must use your professional training and experience to make the decision.
What if I am not sure a child is being abused?
It is not necessary for you to prove abuse or neglect. If you are reasonably suspicious, you must report.
What if I am wrong?
Sometimes mistakes are made but the system must be used. It is better to err on the side of wrongful reporting than to risk the further injury or death to the child.
* * *
What if my principal or superintendent will not allow me to report?
Reporting is a personal responsibility. You do not need the permission of your principal, although you should approach your principal first and seek his/her cooperation. It is your responsibility to report.
What if I suspect my principal or teacher of abuse?
You must report whenever you suspect abuse or neglect. Remember, as a mandated reporter the law will protect you.
How do I report?
Call the Florida Abuse Hotline 1-800-962-2873 or local enforcement in case of an
emergency. . . .
In Price's 27-year career with the School Board, she had has no other disciplinary action taken against her. She has had satisfactory evaluations from the School Board.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Disciplinary action must be taken in accordance with the provisions and terms of employment. Williams v. Department of Transportation, 531 So. 2d 994 (Fla. 1st DCA 1988). The collective bargaining agreement between the Palm Beach County Classroom Teachers Association and the School Board provides that disciplinary action against an employee in Price's position must be based on just cause and must be substantiated by clear and convincing evidence.
In Inquiry Concerning Davie, 645 So. 2d 398 (Fla. 1994), the Florida Supreme Court, quoting approvingly from the
decision in Slomowitz v. Walker, 429 So. 2d 797, (Fla. 4th DCA 1983), described what the evidence must be to meet the "clear and convincing" standard.
There must be more than a 'preponderance of the evidence,' but the proof need not be 'beyond and to the exclusion of a reasonable doubt.'
This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
[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, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800
(Fla. 4th DCA).
The School Board has alleged that Price violated
Rule 6B-1.006(3)(a), Florida Administrative Code, which provides that an educator '[s]hall make a reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health or safety." Her failure to protect the student was a result of not reporting the incident between LeFlore and Ms. White to the principal and to the abuse hotline.
The School Board has established by clear and convincing evidence that a reasonable person would have suspected that child abuse had occurred based on the interview with the students. The three students interviewed before Ms. White was brought to Mr. Hooks' office told Price that Ms. White had told them that LeFlore had pushed Ms. White against the wall and inappropriately rubbed against her. When Ms. White was first questioned, she said something had happened "sort of." She then said that LeFlore had pushed her against the wall but that he was playing. After Price told Ms. White that she would have to call Ms. White's mother if something had happened, Ms. White then changed her story and said nothing happened at all. Price was told that Ryan Spence was an eyewitness to the incident. When Ms. Spence was confronted by Price, she told Price that LeFlore had pushed Ms. White against the wall and rubbed himself against her. Ms. Spence's statement should have been sufficient to put Price on notice that further intervention was necessary and that at the very least the principal should have been contacted.
The School Board has alleged that Price violated
Rule 6B-1.006(5)(a), Florida Administrative Code, which requires educators to maintain honesty in all professional dealings.
Price told Hooks that nothing had happened. Although the students present during her statement to Mr. Hooks did not contradict her, it is clear that based on Ms. Spence's statement something had happened and should have been looked into. Price
was not honest with Mr. Hooks. The School Board has established by clear and convincing evidence that Price violated
Rule 6B.1.006(5)(a), Florida Administrative Code.
The School Board has alleged that Price mischaracterized or misrepresented her role in the investigation. Price did make a reference that LeFlore was like a son, but she did not tell the students that LeFlore was her son. Price may have raised her voice during the interview but she did not shout or yell at the students. Although, Price did tell the students that students could be suspended for spreading rumors which were not true, the evidence does not support a conclusion that she specifically threatened that she would suspend the students who were being interviewed. The School Board has failed to establish that Price mischaracterized her role in the investigation.
The collective bargaining agreement provides for progressive discipline, unless the actions constitute a real and immediate danger to the District or constitute a clearly flagrant and purposeful violation of the school rules and regulations. Progressive discipline was not administered to Price; instead, the School Board chose to suspend and dismiss Price.
Other than the incident at issue, Price has had an unblemished and exemplary 27-year career with the School Board. Based on her relationship with LeFlore, it is doubtful that Price could have remained objective in the investigation, and she should not have become involved in the investigation. However,
given the circumstances of the principal and assistant principal being unavailable, and of Mr. Hooks asking her to look into such serious allegations, Price tried to accommodate Mr. Hooks' request.
None of the other teachers and administrators who had knowledge of the rumors were disciplined for not reporting the situation to either the principal or the abuse hotline. It is clear based on the child abuse manual provided to the teachers and the School Board policy that others also should have reported the incident to the principal and to the abuse hotline.
Based on the collective bargaining agreement, Price's long unblemished career with the School Board and the lack of discipline for others who were involved in the incident, Price should not be dismissed from her position. The appropriate penalty is a one-year suspension without pay retroactive to September 24, 1998.
