STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on June 10, 2009, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

J. David Holder, P.A.

1400 Village Square Boulevard, Suite 3-196

Tallahassee, Florida 32312

For Respondent: Lester L. Hall, pro se

810 Wadsworth Street, Apartment 113-B Tallahassee, Florida 32304

STATEMENT OF THE ISSUE

The issue presented is whether Respondent should be terminated from his employment with the Leon County School Board based upon the charges in the Notice of Final Disciplinary Action.

PRELIMINARY STATEMENT

By Notice of Final Disciplinary Action dated March 25, 2009, Petitioner Leon County School Board notified Respondent Lester L. Hall that it was terminating his employment as an instructional aide, effective April 2, 2009. Respondent timely requested an administrative hearing regarding that decision, and this cause was transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Renee Gadson, Pam Jameson, Jane Floyd-Bullen, Robert H. Tricquet, Melinda McBride, Shannon Black, David A. Knight, and James Parry. Respondent testified on his own behalf.

Additionally, Petitioner's Exhibits numbered 1-18 and Respondent's Exhibit numbered 1 were admitted in evidence.

The Transcript of the final hearing was filed on June 24, 2009, and Petitioner's Proposed Recommended Order was filed on July 2. Respondent waived his right to submit a proposed recommended order.

FINDINGS OF FACT

1. After serving ten years with the United States Marine Corps, Respondent Lester L. Hall became a firearms instructor for a Maryland police department. He also began to work with at-risk children.

2. After he returned to Leon County, Florida, in 1996, he began working with at-risk children at DISC Village and worked there until 2005.

3. In 2003 Respondent began his college education at Tallahassee Community College. He is now in his last year at Flagler College, which has a satellite branch on the community college's campus. He is majoring in elementary education and exceptional student education.

4. Sometime in 2006, Respondent began working as an instructional aide at Gretchen Everhart School. Everhart is a special day school with approximately 250 students. Those students are primarily moderately to severely mentally handicapped, and some are also physically handicapped.

5. On July 26, 2006, Respondent was promoted to assistant director of the Students Motivated in Learning at Everhart (SMILE) after-school program. He was terminated from his position as of October 13, 2006, for reasons unrelated to the allegation which gives rise to this proceeding.

6. In January 2007 Respondent began working at DeSoto Trail Elementary School as an instructional aide.

7. Renee Gadson has worked for the Leon County School Board as a substitute teacher since 1992. During the 2006-07 school year and thereafter she worked at several different schools within Leon County, including Everhart.

8. On September 13, 2008, Gadson saw Respondent at Everhart talking with some adults and then helping to load a student into a van. The next day she again saw Respondent at Everhart. After seeing Respondent at Everhart two days in a row, she then went to Pam Jameson, the site coordinator for the SMILE program, demanding to know why Respondent was at the school and why he was allowed to be near children. Jameson inquired as to why Gadson was so upset.

9. Gadson related to Jameson that two years earlier, Gadson had gone to Everhart to pick up her nephew from the SMILE program and upon entering the classroom saw a young female with her head in Respondent's crotch area. Jameson told Gadson to report this to the Principal.

10. Late that day Gadson spoke with Principal Jane Floyd- Bullen. Gadson told the Principal what she had told Jameson. According to Gadson, Respondent was standing just three feet inside the open classroom door and that in addition to the young female and Respondent, two other students were present in the classroom: Gadson's nephew and another boy who was in a wheelchair.

11. She further explained that as she and Respondent made eye contact, Respondent pushed the girl away, turned away from Gadson, and adjusted his clothing. Respondent then turned to Gadson and began talking to her about how her nephew's day had

    gone. A few minutes later, the pregnant mother of the boy in the wheelchair arrived to pick up her son, and Gadson left the classroom. She said that she looked for program director Jameson, but Jameson was not there so Gadson left the school.

12. Gadson explained that after a few more days she did not see Respondent at Everhart any more so she assumed the problem had been taken care of until she saw him there two years later.

13. Floyd-Bullen asked Gadson if she had reported what she saw to anyone at the time, and Gadson said she thought she had but could not remember to whom she had spoken. Since it was late Friday afternoon when Gadson came to her, on Monday morning Floyd-Bullen contacted James Parry, the School Board's Chief of Labor and Employee Relations to report this conversation. Two investigations ensued: one by the School Board's Department of Safety and Security and one by the Leon County Sheriff's Office.

14. On September 17, 2008, Respondent was given a letter telling him he was being placed on administrative leave with pay pending resolution of an investigation. Respondent was not told the subject of the investigation until he was summoned to the Sheriff's Office for questioning and was told then.

15. Investigating Gadson's allegation was difficult because it was two years later, and the date of the incident she reported could only be narrowed down to late-September or early-

    October 2006. Further, although it was easy to identify the boy in the wheelchair, identifying the young girl was difficult.

16. Gadson made the identification based upon looking at pictures in the most-recent Everhart yearbook. She identified a girl who had an unusual gait. The girl identified by Gadson has an I.Q. of 24 or 25 and is non-communicative, as are Gadson's nephew and the boy in the wheelchair. The girl she identified was not in the SMILE program during the time period of the alleged incident but "could" have been there if no one was at her home when the school bus delivered her there and if the bus driver had returned her to Everhart and taken her to the SMILE classroom.

17. During the investigation Gadson remembered that she had reported the incident in 2006 to Joanne Kilpatrick, an employee at Everhart. When questioned, Kilpatrick did not remember any such conversation.

18. During the investigation Gadson described what the girl was wearing, what Respondent was wearing, and what she was wearing two years earlier. She explained that she was wearing tennis shoes so her footsteps walking to the classroom made no noise and that the electric-powered doors to the hallway where the classroom was located were partially opened and so she opened them manually, thus preventing the motor to make its usual noise. She admitted that she had not seen Respondent's

    penis and the little girl was not moving during the incident which she described.

19. During the investigation Gadson was asked by the detective investigating the case to take a computerized voice stress analyzer test. Among the questions she was asked during the test were two very specific questions which included Respondent's name, her nephew's name, and the classroom as the location. Her answers were considered to be "non-deceptive" by the person who administered the test and the person who read the computer print-out.

20. When Respondent was informed of the allegation against him, he became extremely upset and frightened. His demeanor varied during the interview among being calm, being frightened, being angry, and crying. He denied the allegation but was unable to tell the detective why Gadson would make such an allegation if it didn't happen. He asked if he could be given a lie detector test and was offered the computerized voice stress analyzer test. Among the questions he was asked, the only two relevant questions were general in nature, unlike the very specific questions asked Gadson.

21. Respondent, who was then a 43-year-old, unmarried, full-time college student, was asked: "Have you ever exposed your penis to a student?" and "Have you ever had a student perform oral sex on you?" His answers were determined to be

    "deceptive" by the person who administered the test and the person who read the computer print-out.

22. At the final hearing Respondent explained the physical location of the SMILE classroom, the second classroom on the left, in a hallway with other classrooms and with an outside entrance to the building at the rear and another in the front of the building. At the time of the alleged incident, there were

    17 students enrolled in the SMILE program, which ended at

    
    

    6:00 p.m. Between the hours of 5:00 p.m. and 6:00, the time of the alleged incident, the classroom is busy with parents, staff, and students coming in and going out.

23. The mother of the boy in the wheelchair regularly brought her young daughter with her when she picked up her son. Respondent had a teasing relationship with the girl and even had a nickname for her. Since her mother was 8 1/2 months pregnant at the time and moved slowly, the girl would usually arrive at the classroom before her mother. Respondent thinks it is possible that the girl ran into the classroom and hugged Respondent just as Gadson appeared in the doorway and saw a girl with her head in Respondent's crotch area. That girl was the age of the girl described by Gadson, but the girl identified by Gadson was several years older than the age of the girl Gadson described.

24. At the conclusion of the Sheriff's Office investigation, the State Attorney's Office declined to prosecute.

25. Although Gadson, as she repeats her story, is credible, it is determined that her allegation has become true to her over time, but was not true at the time of the alleged incident. Her behavior at the time is inexplicable if she saw what she now says she saw. She came into the classroom through its open door. She said and did nothing to confront Respondent about what would constitute not just child abuse but a serious crime. She did nothing to comfort the girl or remove the girl from Respondent's presence. She simply chatted with Respondent for a few minutes and left, assumedly leaving the girl with Respondent. When she was unable to find Jameson, she simply left the school without contacting anyone at the School Board, calling the abuse hotline, or contacting the police. In short, she did not report what she now says she saw to anyone in a position of authority to do something, including the principal at Everhart who testified that Gadson regularly came to her to voice concerns about other matters.

26. Her testimony that she assumed Respondent had been dealt with since she didn't see him at Everhart after a few more days is also strange for two reasons. First, the conversation she says she had with Kilpatrick which Kilpatrick doesn't

    remember was simply saying that Respondent had done something inappropriate. Thereafter, since no one ever asked her what she had seen, it would have been clear to a reasonable person that there was no one looking into her vague report. Second, her testimony means that she was not bothered by the fact that Respondent was still at Everhart after the alleged incident, even for a few days.

27. Gadson's behavior on the day of the alleged incident and thereafter can only be justified if she didn't think at the time that she had seen an abusive and criminal act taking place even though she has apparently convinced herself she had two years later. Gadson has been an educator for many years, and it is beyond belief that she would react as she did if she believed that she had witnessed what she later described and yet simply left the child to be alone in the classroom with Respondent when the mother removed her son in the wheelchair.

28. After Respondent quit his job at DISC Village, he filed a complaint with the Florida Commission on Human Relations alleging discrimination. An evidentiary hearing was conducted by this forum and resulted in a Recommended Order recommending that Respondent's complaint be dismissed. That recommendation was adopted by the Commission. (DOAH Case No. 06-1052, Final Order entered October 12, 2006). The findings of fact in the DOAH Recommended Order entered July 20, 2006, reflect that an

    investigation of Respondent was about to commence when Respondent left his employment. There is no evidence that an investigation was already underway.

29. When Respondent was terminated from his position as the assistant director of the SMILE after-school program, he filed a complaint with the Florida Commission on Human Relations. An employee there conducted an investigation and determined that there was no reasonable basis for believing that an unlawful employment practice had occurred. Respondent did not pursue his claim any further.

30. Respondent's March 8, 2007, application for employment by the School Board of Leon County in Section III asks for employment history. Respondent left blank the reason(s) for leaving his prior positions. In question numbered 2 Respondent answered in the affirmative that he had been terminated in October 2006. Questions numbered 3 and 4 asked if he had left a job by mutual agreement or under unfavorable circumstances. While it can be argued that Respondent's answers to these questions in the negative were technically correct but conceptually incorrect, his answers do not reflect on his credibility in this proceeding. Despite his only-arguably- incorrect answers, Respondent's testimony is more credible than Gadson's.

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes, and Article 5.04 of the Collective Bargaining Contract between the Leon County School Board and the Leon Educational Support Personnel Association.

32. Petitioner has the statutory authority to take disciplinary action against Respondent, including dismissal, pursuant to Sections 1001.42(5)(a), 1012.22(1)(f), and 1012.40(2)(b) and (c), Florida Statutes. Petitioner also has the contractual authority to take such action pursuant to Article 5 of the Collective Bargaining Contract.

33. Petitioner has the burden of proving by a preponderance of the evidence the allegations of misconduct against Respondent. § 120.57(1)(j), Fla. Stat.; Allen v. Sch. Bd. of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990). Petitioner has failed to meet its burden of proof.

34. Article 5.01 of the Collective Bargaining Contract provides that Respondent may be disciplined for just cause. Violation of Rule 1.30, Principles of Conduct for Leon County Schools Personnel, constitutes just cause for dismissal. Respondent is charged with failing to be of good moral

character, with failing to demonstrate conduct appropriate and consistent with the high standards that the school district and community expect, and with misconduct in office. Since Petitioner has failed to prove by a preponderance of the evidence that the alleged incident occurred, then Petitioner has failed to prove that Respondent violated Rule 1.30. Petitioner, therefore, lacked just cause for terminating Respondent's employment.

RECOMMENDATION

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

RECOMMENDED that a final order be entered dismissing the charges against Respondent and reimbursing him for lost wages and benefits from the date of termination until the effective date of his non-reappointment.

DONE AND ENTERED this 27th day of July, 2009, in Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2009.

COPIES FURNISHED:

Lester L. Hall

810 Wadsworth Street, Apartment 113-B Tallahassee, Florida 32304

J. David Holder, Esquire

J. David Holder, P.A.

1400 Village Square Boulevard, Suite 3-196

Tallahassee, Florida 32312

Jackie Pons, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304

Dr. Eric J. Smith Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 09-001975TTS

Orders for Case No: 09-001975TTS