STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

DENNIS MICHAEL HESTER,

Respondent.

/

Case No. 16-0407PL

RECOMMENDED ORDER

On March 29, 2016, Administrative Law Judge Lisa Shearer Nelson of the Florida Division of Administrative Hearings (DOAH or the Division) conducted a hearing pursuant to section 120.57(1), Florida Statutes (2015), in Jacksonville, Florida.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088 Ocala, Florida 34477-0088

For Respondent: Dennis Michael Hester, pro se

14546 Luth Drive South Jacksonville Beach, Florida 32250

STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent, Dennis Michael Hester (Respondent or Mr. Hester), violated section 1012.795(1)(g) and (j), Florida Statutes (2011), and Florida Administrative Code Rule 6A-10.081(3)(a), (4)(b), (4)(c), (5)(a),

(5)(d), and/or (5)(f), as alleged in the Administrative Complaint, with respect to his role as a Professional Development Facilitator (PDF) and English for Speakers of Other Languages (ESOL) trainer, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 25, 2015, Petitioner, Pam Stewart as Commissioner of Education (Petitioner or the Commissioner), filed an

eight-count Administrative Complaint against Respondent, alleging that he violated section 1012.795(1)(g) and (j), and

rule 6A-10.081(3)(a), (4)(b), (4)(c), (5)(a), (5)(d), and/or

(5)(f), in connection with his role as a PDF at Fletcher High School and as an ESOL trainer for the Duval County School District (School District). Specifically, the Administrative Complaint alleged that Respondent behaved in an unprofessional manner toward colleagues Christine Reed, Andrew Davis, Nicole Conrad, and Ms. McDonough, by harassing and threatening them; repeatedly provided ESOL endorsements to employees in school year 2011/2012 without requiring that they complete the course requirements; and provided an end-of-course examination to an educator for use in guiding the educator’s curriculum.

Mr. Hester executed an Election of Rights form disputing the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1). On January 26, 2016, the matter was forwarded to the Division for the assignment of an

administrative law judge. In response to a question contained in the Initial Order regarding the existence of related cases, both parties disclosed that there was a prior proceeding at DOAH in which the Duval County School Board sought to terminate Respondent’s employment, in Duval County School Board v. Dennis

Hester, Case No. 13-2882 (Fla. DOAH Jan. 15, 2015; Fla. DCSB June 12, 2015) (the School Board case). In that case, Administrative Law Judge Lawrence Stevenson found certain violations charged in the School Board’s Notice of Termination of Employment Contract and Immediate Suspension without Pay, but recommended that something short of termination be imposed. The School Board adopted the Findings of Fact and Conclusions of Law recommended by Judge Stevenson, but chose termination as its penalty for the violations found. While the allegations in the Notice of Termination and those in the Administrative Complaint overlap, they are not identical.

On February 3, 2016, a Notice of Hearing was issued in this case, scheduling the hearing for March 29 and 30, 2016. A

Pre-hearing telephone conference was scheduled for and conducted on March 8. On March 14, the parties jointly requested a status conference, at which time they requested permission to place into evidence in this proceeding the Transcript, exhibits, Recommended Order, and Final Order in the School Board case, with the aim of shortening the length of the testimony to be elicited live at

hearing. Both parties voiced the intention of calling witnesses, albeit fewer of them, to address issues not tried in the School Board case and to address credibility issues related to the witnesses who previously testified.

With those parameters in mind, the parties filed a Joint

Pre-hearing Statement on March 21, 2016, in which they stipulated to the Findings of Fact numbered 1 through 19 and 24 through 35 in the Recommended Order in the School Board case, and requested that the remaining portions of the Recommended Order be given “whatever weight the Administrative Law Judge deems appropriate.” The findings to which the parties stipulated have been incorporated into the Findings of Fact below, with some minor changes for the sake of clarity, given that the Commissioner, as opposed to the School Board, is the petitioner in this case.

The hearing commenced and concluded on March 29, 2016.

Petitioner advised that it was withdrawing the factual allegations in paragraphs 3(d) and 5 of the Administrative Complaint. The parties submitted as Joint Exhibits 1 through 3, the four-volume Transcript, Recommended Order, and Final Order from the School Board case.1/ Petitioner presented the testimony of Christine Reed and submitted Petitioner’s exhibits previously submitted in the School Board case: Exhibits 4 through 10,

15 through 36F, 37, 39 through 52E, and 53. Respondent presented the testimony of Caleb Thomas, Debra Goodwin, Teresa Henderson,

Doris McNeil, Dane Gilbert, Donald Nelson, Suzanne Harman, Catherine Johnson, Jessica Altman, Josephine Jackson, and Karen Patterson, and submitted Respondent’s Exhibits 1 through 16, 19,

23 through 45, 47 through 53, 56, 57, 61 through 72, 77, 80, 81,

84 through 89, 91 through 110, and 112 through 116 from the School Board case. Respondent’s Exhibits 119 and 128 through 130 were admitted during the March 29 hearing.2/

The two-volume Transcript from the March 29, 2016, hearing was filed with DOAH on April 19, 2016. Petitioner requested an extension of time for the filing of proposed recommended orders, and the time for filing was extended to May 9, 2016. Both parties’ post-hearing submissions were timely filed and have been considered in the preparation of this Recommended Order.

In reviewing the record, it was discovered that three exhibits admitted into evidence in the School Board hearing, Petitioner’s Exhibit 53 and Respondent’s Exhibits 65 and 81, were not included in the exhibits provided at hearing. With respect to each of these exhibits, no objection had been made, and the Transcript and Recommended Order for the School Board case both indicated that they had been admitted. By Order dated July 14, 2016, the parties were directed to provide the exhibits no later than July 21 if the respective party still wanted those exhibits to be considered. Both parties promptly provided the missing exhibits, which have been reviewed along with the rest of the

record. All references to the Florida Statutes are to the codification in effect at the time of the events giving rise to this proceeding.

FINDINGS OF FACT

1. Dennis Hester was employed by the School District as a teacher from 1994 until his termination in 2015. He was covered by the Collective Bargaining Agreement between the Duval Teachers United and the School Board for the period from 2008-2011. At the time of the events giving rise to both this case and the School Board case, Mr. Hester was assigned to Fletcher High School in Duval County as an instructional coach and a PDF. Although no direct evidence was presented on this point, Respondent admits in his Proposed Recommended Order that he holds a Florida Educator’s Certificate. Respondent’s substantial interests are affected by this proceeding.

   ESOL Certification Requirements

   
   

2. The allegations against Respondent include allegations of unprofessional behavior toward colleagues and an allegation that Respondent repeatedly gave District employees credit for ESOL courses that they did not attend and/or for which they performed no work. While both claims, if proven, would warrant discipline, the more serious claim in both cases is the allegation that Respondent gave credit for ESOL courses which employees did not attend and performed no work.

   
   

3. In August 1990, Judge James Lawrence King of the United States District Court for the Southern District of Florida entered a consent decree to oversee the implementation of a settlement agreement between the Florida State Board of Education and a coalition of plaintiff organizations that included the League of United Latin American Citizens, ASPIRA of Florida, the Farmworkers’ Association of Central Florida, the Florida State Conference of NAACP Branches, the Haitian Refugee Center, the Spanish American League Against Discrimination, the American Hispanic Educators’ Association of Dade, and the Haitian Educators’ Association. The text of the consent decree and settlement agreement is found at www.fldoe.org/aala/lulac.asp.

4. Section IV of the settlement agreement requires teachers of “English language learners” or “ELL Students”3/ to obtain an ESOL endorsement and complete between 60 and 300 hours4/ of

   in-service training in each of the five subject matter areas:

   
   

   1. methods of teaching English to speakers of other languages,

      
      

   2. ESOL curriculum and materials development, c) cross-cultural communication and understanding, d) applied linguistics, and

   e) testing and evaluation of ESOL. See Fla. Admin. Code

   
   

   R. 6A-4.0244 (specialization requirements for the ESOL endorsement) and 6A-6.907 (in-service requirements).

5. Not every teacher is required to obtain the ESOL certification. The requirement is triggered once an ELL student

   
   

   is assigned to a teacher’s class. Karen Patterson, the School Board’s ESOL specialist at the time period relevant to this proceeding, testified that she knew of one teacher who taught for nearly 40 years before being flagged as out-of-field for having an ELL student in her class and no ESOL course credits on her record.

6. The School Board policy is to terminate the employment of teachers who are flagged for ESOL and who do not timely obtain the required ESOL in-service training. Approximately 750 to

   800 teachers are flagged as out-of-field for ESOL each school year and must come into compliance with ESOL requirements by June 30 of the school year in which they were flagged.

7. A teacher must obtain between 60 and 300 in-service credits, depending on the subject matter the teacher teaches. Reading and language arts teachers are required to complete

   300 credits, while math and science teachers need only

   
   

   60 credits. The Department of Education allows teachers to “bank” their ESOL credits and apply them toward the requirements for recertifying their Florida Educator’s Certificate.

8. Section 1003.56(3)(a), Florida Statutes, requires each district school board to submit to the Department of Education for review and approval a plan for providing ESOL instruction to ELL students. Section 1003.56(3)(f) also requires the district school board to provide qualified teachers for ESOL instruction.

   
   

9. The School Board’s approved District Plan identifies the standards for obtaining the ESOL endorsement, stating that the “expectation is that any teacher who obtains the ESOL Endorsement will acquire the appropriate strategies to teach English language learners.” The District Plan refers to the ESOL endorsement as an “add-on program,” because the endorsement can be added to any Florida Educator’s Certificate requiring a bachelor’s degree or higher. The District Plan provides in pertinent part:

   The standards to be addressed in each course will be stated and updated in the district’s master in-service plan for the Add-on- Certification Program for ESOL. Each component has been developed in accordance with the requirements for the Master Plan for In-Service Education components.

   Participants must complete and demonstrate competency of 80% of the course objectives in order to receive credit for the component.

   Participants must participate in the following clinical activities in the ESOL Add-on-Program for the ESOL endorsement:

   
   

   • Submit a portfolio of ELL student work with analysis of student growth

     
     

   • Develop appropriate formal and alternative methods of assessment for ELLs

     
     

   • Develop lesson plans using effective teaching methodologies in planning and delivering instruction to meet the needs of ELLs

     
     

   • Complete a culture sketch and mini- ethnography on an ELL to identify language proficiency and cultural influences on learning

     
     

   • Use knowledge of culture and learning styles to plan and evaluate instructional outcomes

     
     

   • Evaluate, modify, and employ appropriate instructional materials for ELLS at all proficiency levels

     
     

   • Evaluate instructional programs in ESOL based on current standards

     
     

   • Reflect on and analyze current trends in ESOL

     
     

   • Select and develop appropriate ESOL content according to ELL students’ level of proficiency

     
     

   • Identify and implement strategies for using school, community and home resources

     
     

   • Analyze ELL Case Studies

     
     

   • View and discuss pd360.com segments for each course[5/]

   
   

10. The District Plan also sets forth the following “Completion Requirements”:

    The participant will satisfactorily complete all the appropriate courses needed for the endorsement. The successful completion of each required course will document that the participant has attained the competencies and skills addressed in and specific to the course. In order to complete a course successfully, a participant must:

    
    

    • Complete a Pre/Post test or other valid measure to show at least 80% competency of the course objectives

      
      

    • Complete all individual and group activities at a professional level of quality that demonstrates knowledge of the Florida Teacher Standards for ESOL Endorsement

      
      

    • Complete all written assignments at a level that demonstrates competency of Domains 1-5 of the Florida Teacher Standards for ESOL endorsement[6/]

      
      

      1. Program Completion

         
         

         The participant must master 80% of the course objectives in order to complete the

         in-service component satisfactorily. In order to add the ESOL endorsement the participant must complete all five state- approved ESOL in-services courses or the equivalent. The participant must complete all individual projects and assignments at the level of quality as stated in the objectives. The instructor will follow the criteria established for satisfactory completion. Upon completion of the required course work, the Professional Development Director will certify the program completion.

         
         

      2. Competency Demonstration

         
         

         The participant must demonstrate successful completions of all competencies as outlined in the district master in-service components for each ESOL class included in the add-on endorsement program for the Florida Teacher Standards for ESOL Endorsement.

         
         

11. The “Management” section of the District Plan states:

    
    

    1. Attendance Requirement for in-service points

    
    

    Attendance is mandatory. All of the classes have a specific number of hours and participants must attend the required number of hours. Absences must be made up with the instructor or the ESOL Specialist. Excessive absences will result in the participant not satisfactorily completing the class. The Director and ESOL Specialist for Professional Development will determine what will happen with a participant in the event of an extreme

    
    

    emergency or serious illness causing excessive absentees [sic].

    
    

12. During the period relevant to this case, Brenda Wims was the director of professional development for the School District. She was responsible for all in-service programs in the School District, including the ESOL program. Karen Patterson, the ESOL specialist, worked directly beneath Ms. Wims in the hierarchy. There were 20 to 35 ESOL facilitators, such as

    Mr. Hester, who delivered the in-service training for ESOL development.7/

13. Ms. Patterson testified that there was always a crunch at the end of the school year to obtain ESOL credits and that the bulk of the training pushed up against the June 30 deadline. Teachers came to her office as late as June 27 desperately seeking ESOL credits. Some teachers had not realized that they were out-of-field for ESOL until near the deadline, and they would approach Ms. Patterson in a panic.

14. Ms. Patterson also testified that the professional development staff did whatever they legitimately could to ensure that teachers flagged for ESOL obtained the credits that they needed to keep their jobs. Given the number of teachers caught by the ESOL requirement each year, Ms. Patterson had an enormous task to schedule sufficient ESOL courses for them.

    
    

15. As the end of the school year approached and the desperate push for ESOL classes began, the professional development staff would schedule additional courses and would shorten courses. The standard ESOL training program consisted of five separate courses, each covering one of the “domains” identified in paragraph four. Each course was worth 60 points. Those teachers needing 300 points were required to take all five classes.

16. In recognition that there is some subject matter overlap among the ESOL courses, the District decided to implement a “hybrid” ESOL course as part of its effort to quickly move more teachers through the training. The facilitator of this course would offer all five class titles, and the teachers taking the course would choose the title they needed. During the first half of each class session, the facilitator would teach the entire class the materials common to all ESOL courses. During the second half, the facilitator would offer differentiated instruction for each course title. Ms. Patterson testified that the typical ESOL class took ten to 12 weeks, but that the hybrid class was shortened to six weeks.

17. Ms. Patterson also testified that other “emergency” courses were shortened to six weeks. When asked what “emergency” meant, she responded, “[t]hat means that we needed to offer more courses, so we added more that were not hybrid as well.”

    
    

18. Section 1012.56(8) provides for a “cohesive competency- based professional preparation alternative certification program” through which persons with bachelor’s degrees in majors other than education may become certified teachers. This program is popularly referenced as “alternative education,” or “alt. cert.” Ms. Patterson testified that the alternative certification coordinator approached Ms. Wims about adding an ESOL component so that new teachers entering the profession through the alternative certification program would satisfy the ESOL requirement without adding to the backlog of teachers needing separate ESOL certification. The District added an ESOL component to the alternative certification program.

19. Another way to obtain ESOL credit was through independent study. Foreign travel by a teacher could be counted as independent study if certain criteria were met, including a certification that the teacher had been out of the country for five or more days and the completion of an independent study form.8/ Teachers who were unable to attend ESOL classes due to professional or familial conflicts also could seek permission to complete independent studies by performing the course work on their own time. When Ms. Patterson was a PDF teaching ESOL, she conducted between 20 and 40 independent studies per year. After becoming the District’s ESOL specialist, she oversaw roughly

    20 independent studies per year conducted by the ESOL trainers.

    
    

20. Ms. Patterson also testified that when she conducted an independent study for a teacher, she would record the teacher’s participation in the independent study by marking the teacher present in an ESOL course being taught at the time, either by her or by another trainer. This method was used in order to be able to track the credits, not to indicate that the teacher was actually in that particular class. She testified credibly that this method was in place when she started training and that she continued to use it when she became the ESOL specialist.

    However, on those class rosters identified at hearing by

    
    

    Ms. Patterson as being records of independent studies that she conducted, the students were not actually added to an already existing attendance roster for the class. Instead, they were added by use of an additional form that identified the trainer for the course at the top, as well as what component was being taught, and that was signed by Ms. Patterson at the bottom.

21. Teachers also could obtain ESOL credit for ESOL courses they took in college. Credit was not automatic, however. To receive credit this way, the teacher had to submit a written request and a copy of his or her transcript. A similar credit was available to teachers who received in-service ESOL credit during employment with another Florida school district. Finally, teachers also could obtain ESOL certification by passing an examination.

    
    

22. At hearing, Mr. Hester contended that there was an alternative method for receiving ESOL credits at the discretion of the PDF, by the teacher in question demonstrating his or her ESOL knowledge and skills. The School Board denied that there was such an option, and the District Plan makes no allowance for such an alternative method.

    Mr. Hester’s Qualifications and Experience

    
    

23. After four years as a classroom teacher in Duval County, Mr. Hester became a PDF in 1998, working with the District’s Professional Development Cadre (Cadre), which mentored novice and “needs assistance” teachers, and implemented the School District’s master plan for in-service education. Until 2002, Mr. Hester continued to teach in the classroom in addition to his PDF duties. During his time in the Cadre, Mr. Hester estimated that he trained between 3,000 and 4,000 new teachers through the District’s Mentoring and Induction for Novice Teachers (MINT) program. He trained teachers who majored in education, as well as alternative certification teachers.

24. Mr. Hester was chosen to redesign the alternative certification to include the ESOL requirement. After Mr. Hester completed the redesign in 2010, teachers finishing the alternative certification program would receive 120 master plan points for ESOL in the areas of testing and evaluation and cross-cultural communication. In addition to training teachers

    
    

    in the alternative certification program, Mr. Hester became a trainer of trainers in the program.

25. In 1998, Mr. Hester became state certified in the Florida Performance Measurement System, which qualified him to train administrators on how to observe and evaluate teachers. In 1999, he also became state certified in Clinical Educator Training, which further refined his training in the observation and evaluation of classroom teachers and helped him to develop strategies to improve the teachers’ performance. Mr. Hester was also a trainer in Clinical Educator Training, another observational tool used informally to coach teachers.

26. In 2003, Mr. Hester was chosen to receive two weeks of intensive training in the America’s Choice program, a method for implementing standards-based education. Mr. Hester described the standards-based program as founded on the principle that all students can learn the same information and reach a uniform standard of achievement, but that some students take longer and need more assistance to reach the goal. The “critical attribute” of standards-based education is differentiated instruction, whereby faster learners may move at their own pace while the lower achieving students receive remedial support from the teacher.

27. Mr. Hester’s specialized training led to his appointment as a District standards coach from 2003-2007. As a

    
    

    standards coach, Mr. Hester held workshops, coordinated breakout sessions on early release days, and created pamphlets setting forth pre-planning activities, among other duties. Former Fletcher High School principal Dane Gilbert described the standards coach position as an especially tough one in terms of “ruffling feathers” among the teaching staff.

28. From 1998 through 2009, Mr. Hester served as an adjunct professor in the College of Education and Human Services at the University of North Florida. He taught several courses that included ESOL instruction. Mr. Hester testified that this college-level teaching experience was one reason the District brought him into the ESOL program as a trainer.

29. In addition to his redesign of the alternative certification program, Mr. Hester also was the author of the hybrid ESOL course. For a time he was the only PDF teaching the hybrid course because he was one of the few trainers in the District qualified to train teachers in all five ESOL subject areas.

30. Mr. Hester testified that his development and teaching of the ESOL course gave him a reputation as the “trainer of last resort” for the School District. This reputation was enhanced by his willingness to work through holidays to assist desperate teachers in completing their ESOL requirements. He was paid for ESOL classes through the Shultz Center for Teaching and

    
    

    Leadership, which is part of the School District. Contracts appear to be on a per-class component basis, and performance was approved through Ms. Wims. For those contracts provided,

    Mr. Hester generally received up to $2,100 per class.

    
    

31. From 2007 until his termination, Mr. Hester served as Fletcher High School’s PDF and instructional coach. As such, he helped generate the school improvement plan, part of which involved coordination of Professional Learning Communities (PLCs). PLCs are a facilitated collaborative effort among teachers to improve instruction, including the preparation of lesson plans and development of teaching strategies. The 28 or so PLCs at Fletcher High School were organized according to academic subjects or administrative duties, such as “guidance” or “leadership.”

32. As Fletcher High School’s PDF, Mr. Hester also was involved in the adoption of the requirement that teachers develop “lesson design notebooks.” These notebooks were more complex than simple lesson plans in order to enable the teacher to document everything happening in the classroom in terms of standards-based education and the “Florida Educator Accomplished Practices” found in Florida Administrative Code Rule 6A-5.065. The lesson design notebooks were used for evaluative purposes by the school administration.

    
    

33. Mr. Hester attended the various PLC meetings and assisted them with teaching issues. Each PLC at Fletcher had a PLC binder placed in the front office. The documents generated at PLC meetings would be routed to Mr. Hester for his review and for retention in the binders.

34. As the PDF, Mr. Hester also was assigned to work with low-performing “needs assistance” teachers to improve their performance. In addition, Mr. Hester was the Advanced International Certificate of Education (AICE) program coordinator. AICE is a diploma program created by Cambridge University. As program coordinator, Mr. Hester worked closely with top students and their teachers. Mr. Hester also was Fletcher High School’s main data analyst with respect to student and teacher performance.

    ESOL Endorsements

    
    

35. The Administrative Complaint charges in part that “[d]uring the 2011/2012 school year, Respondent repeatedly provided English for Speakers of Other Languages (ESOL) endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” The testimony related to this allegation involves the ESOL credits awarded to teachers Christine Anderson, Julie Durden, Sherry Murrell, Heather Kopp, Catherine Johnson,

    
    

    Josh Corey, Andrew Davis, Suzanne Harman, and Susan Podzamsky, and former principal Dane Gilbert.

36. With respect to some of the teachers, Mr. Hester claimed that he allowed them to do independent studies because of conflicts that prevented them from attending scheduled ESOL classes. Mr. Hester believed that he had the authority to provide independent studies to teachers who could not attend classes, and marked those students as present in classes he taught, similar to Ms. Patterson’s testimony as to how she kept track of independent studies.

37. Respondent contended that these teachers earned their credits through the use of independent studies within the scope of discretion he believed that he had until January 23, 2013. On that date, he received an e-mail entitled “ESOL Independent Study other than ESOL Foreign Travel.” The e-mail had no text, but included an attachment that stated the following:

    ESOL Independent Study other than ESOL Foreign Travel

    
    

    This is decided on a case by case basis and must be approved by Brenda A. Wims Director [sic] of Certificated/Non-certificated personnel for Professional Development and Kella Grant, Supervisor of Certification.

    All assignments must be submitted to the trainer who will then submit the completed work to Karen L. Patterson, ESOL Specialist for Professional Development.

    
    

    The request must meet the following criteria:

    
    

    • Classes are not open for Registration and termination is within a short period of time

    • Death/illness of family member

    • Illness that requires treatment or hospitalization of participant

    • Cross content conflicts (reading/ESOL)

    • Participant assigned Summer School during the Summer course offerings and realizes after the fact that they have not satisfied their out of field status and a replacement is not available and this situation is verified by a Human Resource Administrator/ Principal

    • You must be able to complete the assigned task and meet with the ESOL Specialist for Professional Development, Diversity Specialist or Brenda A. Wims.

    
    

    Brenda A. Wims, Director

    Karen L. Patterson, ESOL Specialist

    
    

38. It appears that Mr. Hester is the only recipient of the e-mail, and he understood it as a directive to change how independent studies are handled. Ms. Patterson testified that the e-mail was generated to clarify the policy because some of the trainers may have had a different understanding. She testified that she probably handed the document out at a meeting, as opposed to e-mailing to everyone, but that it was provided to other trainers in addition to Mr. Hester.

39. Mr. Hester testified that he would go to Ms. Patterson for approval of independent study projects, and that

    Ms. Patterson told him, as well as other trainers, that they were aware of the criteria for independent study established by

    
    

    Ms. Wims: that a teacher must have extraordinary family obligations or school duties that prevented him or her from taking the classes offered by the District. Mr. Hester also testified that Ms. Patterson said she trusted him to make the call on the independent student study project (required for the curriculum), and that teachers must meet the expectations of the course.

40. By contrast, Ms. Patterson testified that Ms. Wims had to approve independent studies and that Ms. Patterson did not have the authority to do so alone. She would relay requests to Ms. Wims and act as a conduit for the trainers, but would not actually approve or deny requests for independent study. She also testified that the criteria listed in the January 23, 2013, e-mail was consistent with the existing policy for independent studies. Her testimony is credited.

41. A comparison of the e-mail to the District Plan reveals that the documents are relatively consistent. The District Plan allows the Director and ESOL Specialist to determine what will happen with a participant “in the event of an extreme emergency or serious illness causing excessive absentees [sic].” The

    e-mail clarifies what is meant by “extreme emergency or serious illness,” and also clarifies that Ms. Wims must actually approve the independent study. While the District Plan could have been read as allowing Ms. Patterson to act unilaterally, clearly

    
    

    neither Ms. Wims nor Ms. Patterson interpreted “and” in that fashion. Further, nothing in either the District Plan or the e-mail came close to allowing Respondent the freedom to expand the parameters for allowing independent study or to change the

    scope of the classes for which credit would be given. However, the allegation in the Administrative Complaint does not charge Respondent with providing independent studies that were not authorized. It charges him with awarding credit where work was not performed.

42. Nevertheless, there were clearly incidents where, according to Ms. Patterson, Mr. Hester received approval for and conducted independent studies for teachers with whom he worked. By the same token, there were teachers for whom he granted ESOL credits and required no work at all.

43. Christine Andrews is a teacher at Fletcher High School.

    
    

    During the time related to this case, she taught AP statistics and calculus. Mr. Hester described her as a phenomenal teacher.

44. On March 16, 2012, Ms. Andrews and several other teachers received an e-mail from Respondent requesting they see him regarding their out-of-field status. Ms. Andrews was confused by this e-mail, because she believed that her undergraduate program at the University of North Florida (UNF) included an ESOL component that satisfied the 60-hour requirement for a high school math teacher. She had not, however, taken her

    
    

    college transcripts to the District ESOL office to obtain approval for the ESOL credit.

45. On March 16, 2012, Ms. Andrews sent Respondent an

    
    

    e-mail stating that she had spoken to Natosha Earst-Bailey in the District’s certification department, who had told her that the computer reflected that she had her 60 hours of ESOL credit, and that she should not have been flagged as out-of-field. While

    Ms. Earst-Bailey suggested to Ms. Andrews that she provide her transcript to Mr. Hester and to Ms. Patterson at the District Professional Development Office, so that the records would be consistent, she did not do so.

46. In May of 2012, Mr. Hester sent both Ms. Patterson and Ms. Earst-Bailey e-mails requesting a review of Ms. Andrews’ credits at UNF for possible ESOL credits. In the e-mail to

    Ms. Earst-Bailey, Respondent stated, “[a]lso, I attached her points and she has 60 for cross-cultural and has the paperwork for 60 hours earned at UNF.”

47. There is no issue with respect to the credits earned through coursework at UNF. However, the credits for cross- cultural communications are based upon her purported attendance in a cross-cultural ESOL class taught by Mr. Hester commencing on July 11, 2011. Respondent signed the attendance sheet, which reflects that Ms. Andrews was present for all 12 class sessions, as well as the completion report for her ESOL course; however,

    
    

    Ms. Andrews testified that she never attended this class, never performed any work for it, and never completed an independent study in order to obtain ESOL credits. She was unaware that she had been awarded these points for the July 2011 class until she was contacted by School District personnel in connection with the School District investigation concerning Mr. Hester.

48. Respondent initially claimed that he completed an independent study with Ms. Andrews, but admitted that he did not require her to do any work in order to receive the credits. Instead, he stated:

    MR. HESTER: . . . So with her being as good of a teacher as she is, knowing her PLC work, knowing what’s in her lesson design notebook, observing her and sitting down and talking with her, I was able to determine that she met the competencies of the course she was given.

    
    

    Q: Well, did you also know what was in the course content she took out at UNF?

    
    

    A: Yeah, because I taught it. And the fact that she was at the – the fact that she took that course at UNF, I also took that into consideration in making that determination.

    
    

    Q: Okay. Well, what did you specifically do to make sure that Christine Andrews possessed all the skills and knowledge and abilities to be able to communicate and properly teach any ESOL student she had?

    
    

    A. Again, I looked at her lesson design notebook, which had all of the information and everything in it, also with her PLC work. I’ve been in several of the PLC meetings. I don’t remember if I observed her or not, but

    
    

    – and also in talking with some of the ESOL students and being able to make the determination that, you know, they would be able to say, oh, that she’s communicating with me, these are the strategies we’re using, so on and so forth.

    
    

49. In short, Ms. Andrews performed no classwork or dedicated work of any kind to obtain the cross-cultural communication ESOL points that Respondent submitted on her behalf. His belief that he had the authority to award ESOL credits based on a teacher’s competence and the quality of her “phenomenal” teaching directly conflicts with the express requirements in the District Plan for ESOL certification, which requires that a teacher complete all individual projects and assignments; attend all class sessions; and complete all written assignments. Respondent’s stated belief that he had the authority to award points for something that does not meet these requirements is simply not reasonable.

50. Julie Durden is a teacher at Fletcher High School. She began teaching there in 2004, teaching American Sign Language. Although the timing is unclear in the record, at some point within the last few school years, she began teaching English, and was flagged as out-of-field for ESOL.

51. Ms. Durden, like Ms. Andrews, received an e-mail from Mr. Hester concerning her out-of-field status. When she went to see Mr. Hester about it, he told her not to worry; he would take

    
    

    care of it and she would not have to attend class. Ms. Durden’s name is listed on the same class roster as Ms. Andrews, beginning in July 2011 and ending in September 2011. She did not sign up, attend, complete course work, or perform an independent study for this course. Ms. Durden was not aware that she had received credit for this class until approached during the School Board investigation.

52. Ms. Durden was instrumental in bringing a program called “Challenge Day” to Fletcher High School and, ultimately, to the entire District. Challenge Day is a program geared to creating a safe environment for children where they feel loved, safe, and celebrated, and is designed to break down barriers and eliminate cliques and bullying. Preparation for Challenge Day is a work- intensive undertaking. Mr. Hester determined that the work

    Ms. Durden performed in preparing for Challenge Day, along with her assistance with preplanning training, equated to the expectations of the ESOL cross-cultural course. Mr. Hester had no authority to make this determination, which is totally inconsistent with the requirements delineated in the District Plan.

53. Ms. Durden acknowledged that she performed a lot of work for the Challenge Day program, and that there might be some content overlap. However, she could not see how these activities could substitute for attending an ESOL class, because the

    
    

    Challenge Day activities are not related to teaching strategies for ELL students.

54. Mr. Hester claimed that he discussed the possibility of granting cross-cultural ESOL points for Challenge Day preparations with Ms. Patterson by telephone. However, he could produce no documentation regarding such a conversation, and

    Ms. Patterson could not recall any such conversation ever taking place. Moreover, she denied having any conversation with

    Mr. Hester that could be interpreted as giving Mr. Hester permission to award ESOL credit via his “alternative delivery” method. Ms. Patterson’s testimony is consistent with the parameters of the District Plan she assisted with implementing, and is credited. To the extent that Mr. Hester truly believed that he had the authority to award ESOL credit in this fashion, his belief was unreasonable.

55. Sherry Murrell is a geometry and intensive math teacher at Fletcher High School. She completed all of her ESOL requirements in June of 2005, and was not out-of-field. While she had expressed an interest in being able to “bank” ESOL credits for recertification, she did not sign up for any classes because she had children at home that she had to care for at the time the classes were taught. Mr. Hester asked her to attend one of his classes, but she declined to so because she could not be

    
    

    at two places at one time, and thought nothing more about the issue.

56. Mr. Hester later brought up the subject of the class with her, and she reminded him that she never signed up for the class. Mr. Hester told her not to worry, that he could make it an independent study because “you’ve gone above and beyond . . . you’ve met all the criteria.” She asked him what work she needed to complete, and he told her not to worry about it.

57. Ms. Murrell did not sign up for, attend, or perform any work for any ESOL classes taught by Mr. Hester. However, her name appears on the attendance roster for the cross-cultural ESOL class taught from July through September 2011, and she is listed as being in attendance for all 12 classes. Her name also appears on the attendance roster for the curriculum and materials for the ESOL class beginning January 10, 2012, and is listed as attending

    11 out of 12 classes.

    
    

58. Approximately a week and a half prior to the School Board investigator coming to the school, Ms. Murrell received an envelope containing completed “course activities checklists” for the curriculum and materials class taught in the Spring of 2012, and for a hybrid class taught during that same period. Both lists were signed by Mr. Hester and dated April 3, 2012. The checklists are the documents an instructor uses to verify completion of the required activities in an ESOL course.

    
    

59. Mr. Hester asked Ms. Murrell if she had received the envelope, and she indicated she had, but Ms. Murrell did not really examine the documents until she met with the investigator. She provided the documents to the investigator.

60. Respondent testified that he gave Ms. Murrell credit because she is a phenomenal teacher. As with Ms. Andrews, Respondent did not have the authority to award ESOL credits based on the quality of Ms. Murrell’s teaching when she performed no work for the ESOL courses.

61. Heather Kopp taught at Fletcher High School for two years after her graduation from UNF, transferred to Mandarin High School, and then after two years returned to Fletcher High School. Ms. Kopp testified that she took ESOL courses as an undergraduate at UNF and was told that she needed no further ESOL courses. She has her ESOL endorsement.

62. There was evidence presented indicating that Ms. Kopp’s name was on class rosters for ESOL classes taking place in January 2009 and January 2010 taught by Mr. Hester. Mr. Hester claimed that he oversaw an independent study for her because she had to care for her children at night and was unable to take ESOL classes. While the charges against Mr. Hester brought by the School District could be interpreted as including conduct related to Ms. Kopp, the Administrative Complaint in this proceeding limits the allegations regarding ESOL classes to the 2011/2012

    
    

    year. Therefore, no findings will be made with respect to Ms. Kopp’s participation, or lack thereof, in ESOL classes.

63. Catherine Johnson is an English teacher at Fletcher High School, and started teaching there in 1998. She took a two-year leave of absence and returned in December 2008.

64. In December 2010, she received an out-of-field notice for ESOL. She talked to Mr. Hester about the notice, who asked Ms. Patterson what classes Ms. Johnson would need to complete her ESOL endorsement. Ms. Patterson indicated that Ms. Johnson needed part 2 of the cross-cultural communications course, and Mr. Hester passed along the information to Ms. Johnson.

65. Ms. Johnson asked Respondent what she needed to do to complete the ESOL endorsement. He told her to consider it an independent study. Ms. Johnson stated that Respondent gave her two discs to load onto her computer, which she was unable to do. When she returned the discs to Respondent, he took them and said that he knew her reputation as a classroom teacher, that she was a quality instructor, and that she had fulfilled the requirements of part 2 of the cross-cultural ESOL course. She accepted that Respondent had the authority to make this determination and did not question it.

66. Respondent, on the other hand, claims he never gave

    
    

    Ms. Johnson any discs because the curriculum was available on the District website. He claims that he gave her the course syllabus

    
    

    for cross-cultural ESOL and told her she could use that as documentation if she needed it.

67. Whether Respondent gave Ms. Johnson discs or merely gave her a syllabus is irrelevant. Respondent admits that he did not give her any work to do in order to fulfill the requirements of the course. He claims that he was not “giving” Ms. Johnson anything: that she earned the ESOL credit because of the extra work she did with PLC groups, her status as an AICE, her lesson design notebook, and his observations with her in the classroom and in PLCs. Respondent signed completion reports for a cross- cultural ESOL course taught by Mr. Hester from January to

    April 2011. Ms. Johnson did nothing to earn credit for this class.9/

68. Josh Corey is a teacher at Fletcher High School. At the time of the hearing, he had been teaching at Fletcher High School for 12 years. He teaches physical education and serves as the school’s head football coach, assistant athletic director, and student activities director.

69. Mr. Corey looked at his records in 2013, and saw that he had credit for 300 ESOL hours. He believed that he had only completed the work for 180 of those hours. He had attended one class and completed two other domains through independent studies under Mr. Hester’s direction. There is no allegation of

    
    

    impropriety regarding the points awarded for these independent studies.

70. Mr. Corey’s name was on attendance sheets for two courses conducted from January to April 2011, offered on different days. Mr. Corey did not attend these classes.

    Mr. Corey’s wife’s name also appeared on these attendance sheets.

    
    

71. Mr. Corey could not have attended these classes because he was coaching softball during this time, and his coaching duties would have conflicted with the class schedule. He could not recall any discussions with Mr. Hester about the classes.

72. Mr. Hester, on the other hand, testified that Mr. Corey wanted ESOL credits for banking purposes, and that his wife needed the ESOL credits, having returned to teaching after having a child. She could not attend because her husband was coaching when the classes were offered, and they had two small children. Mr. Hester testified that he allowed them to do independent studies together, and the work was turned in with both of their names on it. In his view, collaboration between teachers for an independent study was acceptable because it mimics the sharing of activities and experience that goes on in class.

73. The undersigned notes that Mr. Corey only testified in the School Board case, and no additional testimony from him was elicited in the hearing conducted March 29. Therefore,

    Judge Stevenson was in a better position to assess the

    
    

    credibility of both Mr. Corey and Mr. Hester. Judge Stevenson favored Mr. Hester’s version of the events, and believed that it is more likely that Mr. Corey’s wife completed and turned in the coursework in “collaboration” with Mr. Corey than that Mr. Hester invented the scenario of having received the work for which he credited both teachers. Given Judge Stevenson’s superior position to assess both witnesses’ credibility, and the higher burden of proof applicable to this proceeding, the undersigned defers to his assessment.

74. Andrew Davis is a physical education teacher and football coach at Fletcher High School. He went through the alternative certification program and finished it during his third year of teaching. Mr. Hester was his instructor for the program.

75. Mr. Davis’s ESOL credits were obtained through independent study under Mr. Hester’s direction. Only one of the independent studies was conducted during the 2011/2012 school year, and therefore within the period of time encompassed by the allegations in the Administrative Complaint.

76. Mr. Davis is listed on a class roster for the curriculum and materials ESOL course given from January 10, 2012, through April 13, 2012. Mr. Davis testified that he did not attend these classes, but performed an independent study with

    Mr. Hester. He could not recall what tasks he was required to

    
    

    perform other than reading articles that Mr. Hester directed him to read. He stated, “I did whatever Mr. Hester asked me to do regarding these courses.”

77. The evidence is not clear and convincing that, as alleged in the Administrative Complaint, Mr. Hester gave

    Mr. Davis an endorsement without requiring him to complete the course requirements.

78. Suzanne Harman is a teacher at Fletcher High School.

    
    

    She has been teaching since 1974, and has taught English at Fletcher High School since 1996. She did not teach from 1986 to 1996 because of her husband’s naval career.

79. Ms. Harman was notified on March 25, 2011, that she was out-of-field for ESOL credits and needed to complete her ESOL credits by December 31, 2011. Ms. Harman was unfamiliar with the ESOL requirements because of her absence from the teaching field when the program was first implemented. Although the timing of her actions is unclear, she consulted with Mr. Hester to find out what she needed to do.

80. Ms. Harman testified that Mr. Hester took out a checklist of course artifacts for the cross-cultural ESOL class, and went down the list, identifying things that he had seen her do in her classroom. Mr. Hester denied telling Ms. Harman that she could get credit for the things she had done in her classroom. He said that he agreed to work with her through an

    
    

    independent study, because she was dealing with significant issues in her personal life. He claimed that he did go over the items on the list with her, but only when she came in with her completed portfolio at the end of the 2011 independent study.

81. Ms. Harman’s name appears on the class roll for an ESOL class beginning in July and ending in September 2011. The more plausible explanation with respect to this class is the one given by Mr. Hester.

82. Ms. Harman also was on the out-of-field list issued on March 16, 2012, that Ms. Andrews and Ms. Durden received. Upon receiving this notice, Ms. Harman approached Mr. Hester and asked if it was time for her to take another class from him.

    Mr. Hester told her that he was teaching a hybrid ESOL class on Tuesday nights. Ms. Harman attended the curriculum and materials portion of this class for seven of the sessions conducted from April 24 to June 5, 2012. However, her ability to complete the assignments for the class was severely impaired by demands on her time due to her mother’s serious illness. As a result, she was unable to turn in her work folder on the final day of class.

    Mr. Hester told her to get the work to him when she could, but no deadline for doing so is apparent from her testimony.

83. Mr. Hester gave Ms. Harman credit for the class and notified her of the credit via an e-mail dated June 26, 2012. Once she received the e-mail, Ms. Harman made no further effort

    
    

    to finish the materials for the course, and, from her testimony, apparently made no contact with Mr. Hester to ask whether she needed to do so.

84. On January 22, 2013, an anonymous letter accusing

    
    

    Mr. Hester of giving ESOL credits without requiring work for the courses became public. The following day, Mr. Hester sent

    Ms. Harman an e-mail asking about her unfinished portfolio for the ESOL class. Ms. Harman provided some, but not all, of the work she was supposed to complete, and said it was all she could find. Mr. Hester did not ask her for anything else.

85. In May 2013, Mr. Hester notified Ms. Patterson that

    
    

    Ms. Harman had not completed the agreed-upon work assigned to her in the ESOL class for which she was enrolled from April to

    June 2012. The e-mail stated:

    
    

    It was agreed upon that she would be given more time to complete the required work and have it ready by September 2012 due to her extreme family situation.

    
    

    I gave her another extension to the holidays to complete the work (I know I am not allowed to give that amount of time). However, I did not get the information needed.

    
    

    I asked for her work and finally received an incomplete packet (see attached) April 1, 2013. I still waited to see if she would come to me and complete the necessary work— she did not.

    
    

    I am asking that she not be awarded the 60 points for ESOL: Curriculum and Materials.

    
    

    Please have these points removed from her Master Plan Points.

    
    

86. Mr. Hester explained that the e-mail Ms. Harman received in June 2012 was a mass e-mail sent to all participants of the class. He claims that he had spoken to Ms. Harman multiple times following the class about her need to provide the materials to complete her class obligations. He met with her again at the beginning of the school year about the outstanding course work.

87. Mr. Hester’s version of the events is more credible than Ms. Harman’s. His rationale for giving credit to teachers, such as Ms. Andrews and Ms. Johnson, was that they were what he considered to be “phenomenal” teachers. By contrast, he characterized Ms. Harman as a “needs assistance” teacher. While she strenuously resisted that label, Ms. Harman acknowledged that she had multiple observations in her classroom; that she had experienced some issues with administration about items that should have been posted in her classroom; and that she was a very messy person.

88. Mr. Hester clearly should have waited until he received all of the documentation that Ms. Harman had completed the requirements of the class before awarding her credit. Regardless of his motives for doing so, he did make an attempt to correct

    
    

    the record in light of her continued failure to provide the work he requested of her.

89. Susan Podzamsky was a special education teacher at Fletcher High School. She received credit for four ESOL courses taught by Respondent. Mr. Hester admitted that Ms. Podzamsky never attended an ESOL class or completed any ESOL course work for an ESOL class taught by him. She is listed on class rosters and Respondent signed completion reports for her for cross- cultural communications and understanding, beginning July 14, 2011; ESOL curriculum and materials development, beginning January 10, 2012; ESOL hybrid, beginning February 2, 2012; and methods of teaching ESOL, beginning May 1, 2012. Mr. Hester considered her to be a good teacher, and admitted giving her ESOL credit not for course work, but for her participation in non- ESOL-related PLCs, preparation of Individualized Education Plans, and reading competencies.

90. Dane Gilbert was the principal at Fletcher High School until his retirement at the end of the 2011/2012 school year. Mr. Gilbert also served, during his career, on the Education Practices Commission for eight years, and as Chair of the Commission his final year of service.

91. Mr. Gilbert is listed on an attendance sheet for an ESOL hybrid class component, testing and evaluation, beginning May 2, 2012, and signed by Respondent. The attendance sheet

    
    

    lists him as having attended six of seven class sessions.

    
    

    Mr. Gilbert did not attend this class and did not work for it. He saw it on his record when he was checking his hours after he retired.

92. Mr. Gilbert acknowledged a discussion with Mr. Hester about an independent study, but did not follow up on it because he was planning to retire and was not planning on renewing his certification. Mr. Hester, on the other hand, claimed that

    Mr. Gilbert was interested in banking the hours and that the credit was based upon Mr. Gilbert’s involvement in Challenge Day, as well as the principal evaluation binder he prepared, which required a case study.

93. Mr. Gilbert’s version of the events is more credible than Mr. Hester’s. Under either version, however, the facts establish that Mr. Gilbert did not take the ESOL class for which he was given credit, and did not perform an independent study in lieu of attending class.

    Unprofessional Behavior

    
    

94. The Administrative Complaint also alleges that Respondent behaved in an unprofessional manner with respect to Christine Reed, Andrew Davis, and Nicole Conrad.

95. Mr. Hester came to Fletcher High School as a standards coach during Mr. Gilbert’s second year as principal.

    
    

    Mr. Hester’s position evolved into his becoming the PDF and the AICE coordinator for the high school.

96. Mr. Gilbert believed that Mr. Hester was very good at his job and very good for the high school. Mr. Hester was in a teaching position not an administrative position, but appeared to have a position of authority over the faculty.

97. Mr. Hester’s position included quasi-administrative duties, including work with need-assistance teachers, modeling appropriate teaching methods, assistance with preparation of and access to teachers’ lesson design notebooks, and professional development for teachers. His office was two doors down from the principal’s office, with whom he often worked closely. Right or wrong, Respondent was perceived as being Mr. Gilbert’s “right- hand man.” He was present at and involved in meetings related to building the class schedules. Although he often gave input at those meetings, the ultimate schedule was created by the assistant principal for curriculum and approved by the principal. Mr. Hester had no power or authority other than providing suggestions.

98. While Mr. Hester did not have the authority of an administrator, the evidence clearly indicates that some teachers believed that he had that authority, and Respondent apparently did little to dispel this belief. A significant segment of teachers were irritated by or dissatisfied with Mr. Hester’s

    
    

    actions at Fletcher High School, and at least a part of the teachers’ discomfort was due to Mr. Hester’s sometimes high- handed behavior.

99. Several teachers testified about personal conflicts with Mr. Hester. However, the concerns of only three of those teachers are alleged in the Administrative Complaint and only those three will be addressed in this Recommended Order.

100. At least one teacher testified that it was well known around school that if a teacher got on the “wrong side” of

     Mr. Hester, he could make the teacher’s life miserable.

     
     

     Mr. Hester believed that at least part of the animosity directed toward him was because of his homosexuality. No credible evidence was presented that would support this assertion.

101. For several years, Mr. Hester organized what was known as FCAT Boot Camp. The event occurred on a Saturday, and he would recruit teachers to help him run it.

102. Christine Reed was chairman of the reading department at Fletcher High School, and has taught in Duval County for

     24 years. At some time during either the 2011/2012 or the 2012/2013 school year, Mr. Hester approached Ms. Reed about helping with the FCAT Boot Camp. Ms. Reed had assisted with the program for the two previous years, and did not want to do it again. When she refused, Mr. Hester told her he “really needed help with this,” and “you know that I can get you moved.”

     
     

103. Ms. Reed believed that he was threatening to get her teaching assignment within the school changed. She believed that he had this authority because of meetings she had attended as a department head where schedules were discussed. While Mr. Hester had no actual authority to change a teacher’s schedule, he did have input into the process. However, she also testified that “I felt like he could, but I wasn’t concerned because it wasn’t happening at the time. And I had heard him say that to other people or about other people, so I just kind of ignored that.”

104. Given that Ms. Reed was a department head, any belief that Mr. Hester could get her teaching assignment changed is not very reasonable. However, there was a general belief that because of Mr. Hester’s close work with the principal of the school, he could influence Mr. Gilbert’s decision-making. Whether he could make good on his threat is not the point. Any behavior indicating that he would use his position, or any perceptions regarding the reach of his authority to attempt to force people to do what he wanted, is not appropriate.

105. Respondent attempted to impeach Ms. Reed’s credibility by soliciting testimony that she enlisted people to complain about him, and that she benefited from his termination by getting a position as testing coordinator that Mr. Gilbert was considering giving to Mr. Hester. She acknowledged that she did receive the testing coordinator position, and that she once

     
     

     thought of Mr. Hester as her colleague and friend. She testified, however, “in all honesty Dennis, I have great respect for some of the things that you can do educationally, but I steered away from being a close friend of yours when I saw some of the negativity and just the attitude at school and how some people were fearful, and I didn’t want to be associated with that.” Ms. Reed’s testimony was consistent and credible, and is accepted.

106. Testimony was presented regarding the interaction between Mr. Hester and Nicole Conrad. Ms. Conrad was a teacher at Fletcher High School, beginning in 2007. Although testimony was presented regarding three incidents that made Ms. Conrad uncomfortable, none of those alleged incidents occurred during the 2011/2012 or 2012/2013 school years. Ms. Conrad stated that they occurred very early in her tenure at Fletcher High School, in either 2007 or 2008. Given that this alleged conduct is well outside the period of time alleged in the Administrative Complaint, it cannot be considered.

107. In January 2013, an anonymous letter regarding

     
     

     Mr. Hester was sent to the School Board Superintendent Nikolai Vitti, School Board Chairman Fred “Fel” Lee, Human Relations Director Sonia Young, and Fletcher High School Principal Donald Nelson. Mr. Nelson succeeded Mr. Gilbert as principal of Fletcher High School in July of 2012. The letter complained

     
     

     about his unprofessional, bullying behavior toward teachers at Fletcher High School; the failure of administration to address complaints about his behavior; and his award of ESOL credits where no work was done.

108. Mr. Nelson met with Mr. Hester to address the concerns expressed in the letter, and believed at the time that it was the result of a personal conflict between Mr. Hester and the anonymous writer, along the lines of a cat fight. He did nothing else locally, but contacted Sonia Young from human resources (HR), who confirmed her office had received the letter and someone would be in touch with the school. Shortly thereafter, Mr. Nelson was contacted by Mary Mickel, an employee of the professional standards office of the HR department. Mr. Nelson advised Ms. Mickel that he believed the matter was a vendetta by the anonymous author.

109. Eventually the matter was investigated at the School District level, and led to the School Board charges against Mr. Hester and his eventual termination.

110. Mr. Hester was required to meet with an investigator at the District office as part of the investigation. He was anxious to learn who wrote the anonymous letter, and understandably agitated about the allegations against him.

111. In May of 2013, Mr. Hester spoke to Andrew Davis in the parking lot of the high school. Mr. Hester was quite heated

     
     

     about the situation in which he found himself, and told Mr. Davis he believed the anonymous letter was written by Mses. Snell, Reed, and Chalker,10/ that he was going to go after these women, and that he would not feel bad about anyone who got caught in the collateral damage. Mr. Hester stated, “[y]ou never want to piss off a gay man,” and warned Mr. Davis to distance himself from the three woman Mr. Hester was blaming for the anonymous letter.11/

112. Mr. Davis was a reading teacher whose department head was Ms. Reed. He reported the conversation to her, as well as reporting the conversation to Mr. Nelson, and wrote a statement about the incident on May 23, 2013.

113. Respondent admits making this statement to

     
     

     Mr. Andrews, and regrets it. There was no testimony by Mr. Davis that he felt harassed or threatened personally. However, the statement on its face was one that clearly indicates the intention to harm colleagues professionally, with no regard as to who might be harmed in the process.

114. As noted in the Preliminary Statement, the School Board suspended Respondent’s employment without pay and brought an action against Respondent to terminate his employment. After an evidentiary hearing, Judge Lawrence Stevenson found that Respondent had committed some, but not all of the charges alleged in the Notice of Termination. Judge Stevenson recommended that Respondent’s suspension without pay from July 3, 2013, through

     
     

     the date of the Final Order be upheld, and that a reprimand be issued.

115. The School Board adopted the Findings of Fact and Conclusions of Law, but rejected the recommendation regarding the penalty to be imposed, choosing instead to terminate Respondent’s employment. The School Board stated:

     It was only after careful deliberation that this Board decided to terminate Respondent’s employment at the outset of these proceedings. Thereafter, as a result of this administrative proceeding, the ALJ’s recommended discipline appears to be based on his impression of what he considers to be fair and his impressions of the specialized skills of Mr. Hester.

     
     

     Regardless of Mr. Hester’s expertise, his actions are inexcusable and potentially damaging to those colleagues who placed their trust in him, potentially damaging to the students these teachers serve. After careful deliberations before entering this Final Order for this administrative proceeding, the Board could not ignore its constitutional obligations and overarching duty to protect students and ensure that teachers are properly trained under the law, . . . .

     
     

     CONCLUSIONS OF LAW

     
     

116. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569, 120.57(1),

     and 1012.796, Florida Statutes (2015).

     
     

117. This is a proceeding in which Petitioner seeks to revoke Respondent's educator certification. Because disciplinary

     
     

     proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v.

     Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

118. Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano, 696

     So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court:

     Clear 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 lacking in confusion as to the facts in issue. The evidence must be of such a 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.

     
     

     In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). “Although

     this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 989

     (Fla. 1991).

     
     

119. Discipline can be imposed only for conduct actually alleged in the Administrative Complaint. Trevisani v. Dep’t of

     
     

     Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v. Dep’t of

     
     

     Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); and Willner v. Dep’t of Prof’l Reg., 563 So. 2d 805 (Fla. 1st DCA 1990). Therefore,

     while there may be other issues referenced in this Recommended Order in order to explain the backdrop against which the alleged violations occurred, Petitioner may only impose discipline based on those matters actually alleged in the Administrative Complaint as occurring within the time period specified in the Administrative Complaint.

120. Section 1012.796 describes the disciplinary process for educators and provides, in pertinent part:

     1. Upon the finding of probable cause, the commissioner shall file a formal complaint and prosecute the complaint pursuant to the provisions of chapter 120. An administrative law judge shall be assigned by the Division of Administrative Hearings of the Department of Management Services to hear the complaint if there are disputed issues of material fact. The administrative law judge shall make recommendations in accordance with the provisions of subsection (7) to the appropriate Education Practices Commission panel which shall conduct a formal review of such recommendations and other pertinent information and issue a final order. The commission shall consult with its legal counsel prior to issuance of a final order.

     2. A panel of the commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:

        1. Denial of an application for a teaching certificate or for an administrative or supervisory endorsement on a teaching certificate. The denial may provide that the

           
           

           applicant may not reapply for certification, and that the department may refuse to consider that applicant’s application, for a specified period of time or permanently.

        2. Revocation or suspension of a certificate.

        3. Imposition of an administrative fine not to exceed $2,000 for each count or separate offense.

        4. Placement of the teacher, administrator, or supervisor on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, administrator, or supervisor to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation. An educator who has been placed on probation shall, at a minimum:

           1. Immediately notify the investigative office in the Department of Education upon employment or termination of employment in the state in any public or private position requiring a Florida educator’s certificate.

           2. Have his or her immediate supervisor submit annual performance reports to the investigative office in the Department of Education.

           3. Pay to the commission within the first 6 months of each probation year the administrative costs of monitoring probation assessed to the educator.

           4. Violate no law and shall fully comply with all district school board policies, school rules, and State Board of Education rules.

           5. Satisfactorily perform his or her assigned duties in a competent, professional manner.

           6. Bear all costs of complying with the terms of a final order entered by the commission.

        5. Restriction of the authorized scope of practice of the teacher, administrator, or supervisor.

           
           

        6. Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.

        7. Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.

        8. Refer the teacher, administrator, or supervisor to the recovery network program provided in s. 1012.798 under such terms and conditions as the commission may specify.

     
     

121. The Administrative Complaint makes the following factual allegations against Respondent:

     1. During the 2011/2012 and 2012/2013 school years, Respondent behaved in an unprofessional manner towards colleagues when he harassed and threatened them. Examples of Respondent’s conduct include but are not limited to:

        
        

        1. When attempting to get Christine Reed (Reed), a female educator to do something he wanted, Respondent told Reed that, “I can get you moved,” and “I can get your schedule changed,” or words to that effect.

           
           

        2. On or about May 17, 2013, Respondent suggested to Andrew Davis (Davis), a male educator, that he hoped Davis would not get caught in the collateral damages when he took people down, or words to that effect.

           
           

        3. Respondent caused Nicole Conrad (Conrad), a female educator, to feel bullied, scared and helpless.

        
        

     2. During the 2011/2012 school year, Respondent repeatedly provided English for

     
     

     Speakers of Other Languages (ESOL) endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes. Respondent was paid a sum of $2100 for each ESOL class.

     
     

122. With respect to the allegation regarding Ms. Reed, Petitioner has proven the allegation by clear and convincing evidence. While Respondent did not have the authority to have a teacher’s schedule changed, he was in a position where his viewpoint was respected and taken into account. The evidence demonstrates that he was not hesitant in using his apparent authority to his advantage.

123. The evidence demonstrated that Respondent made a threatening statement to Mr. Davis when he stated that he was going to take other teachers “down” and would not care about who became collateral damage. When Respondent advised Mr. Davis he should stay away from those instructors, his statement was clearly meant to be a threat.

124. The evidence did not establish any threatening or harassing behavior directed at Ms. Conrad during the time period alleged in the Administrative Complaint.

125. The evidence established by clear and convincing evidence that ESOL credits were awarded to teachers Andrews, Durden, Murrell, Johnson, and initially to Ms. Harman, as well as Principal Gilbert, for work that they did not complete.

     
     

126. Counts 1 and 2 of the Administrative Complaint allege that Respondent violated section 1012.795(1)(g) and (j). Section 1012.795 provides in pertinent part:

     1012.795 Education Practices Commission; authority to discipline.—

     (1) The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:

     
     

     * * *

     
     

     (g) Upon investigation, has been found guilty of personal conduct that seriously reduces that person’s effectiveness as an employee of the district school board.

     
     

     * * *

     
     

     (j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

     
     

127. Count 1 charges Respondent with violating

     
     

     section 1012.795(1)(g), by having been found guilty of personal conduct that seriously reduces his effectiveness as an employee of the School Board. Petitioner has proven Count 1 by clear and convincing evidence. Respondent’s actions in awarding ESOL credits to teachers who have done nothing to earn those points not only devalues the work legitimately performed by other teachers, but places the certification of teachers that Respondent himself characterized as “phenomenal” or “going above and beyond” in jeopardy. Likewise, his intimidation of teachers with whom he worked created friction and discord in the school that impaired the effectiveness of his role.

128. Count 2 alleges a violation of section 1012.795(1)(j), which makes it a basis for discipline when a teacher or administrator has “violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education Rules.” A finding that Respondent violated any of the rule provisions alleged in Counts 3 through 8 necessarily means that Respondent violated Count 2.

129. Counts 3 through 8 allege violations of

     
     

     rule 6A-10.081. Rule 6A-10.081 contains the Principles of

     
     

     Professional Conduct for the Education Profession in Florida. Prior to January 11, 2013, the Principles of Professional Conduct were contained in Florida Administrative Code Rule 6B-1.006. The version of a statute or rule in effect at the time grounds for disciplinary action arise is the version against which Respondent’s conduct is measured. Childers v. Dep't of Envtl.

     Prot., 696 So. 2d 962, 964 (Fla. 1st DCA 1997). Rule 6B-1.006,

     
     

     the version of the rule in effect at the time of alleged conduct, was basically the same and provided, in pertinent part:

     1. Obligation to the student requires that the individual:

        1. Shall 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 safety.

           
           

           * * *

           
           

     2. Obligation to the public requires that the individual:

        
        

        * * *

        
        

        1. Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.

        2. Shall not use institutional privileges for personal gain or advantage.

        
        

        * * *

        
        

     3. Obligation to the profession of education requires that the individual:

        1. Shall maintain honesty in all professional dealings.

     
     

     * * *

     
     

     (d) Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

     
     

     * * *

     
     

     (f) Shall not use coercive means or promise special treatment to influence professional judgments of colleagues.

     
     

130. Count 3 charges Respondent with violating

     
     

     rule 6A-10.081(3)(a) (then rule 6B-1.006(3)(a)), by failing to “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 safety.” The Department did not prove this violation by clear and convincing evidence. All of the evidence presented dealt with Respondent’s interaction with teachers, not students. While the classes Respondent taught had the ultimate goal of benefiting students, it is too much of a stretch to say that his awarding of points failed to protect students in the affected teachers’ classes. In fact, the evidence showed that a teacher was not flagged for being out-of- field until he or she actually had an ELL student in his or her class, and from that time the teacher had until the end of the school year to obtain the endorsement. While the teacher worked

     
     

     to come into compliance with ESOL requirements, the teacher was still teaching the ELL student. Respondent’s actions, while clearly wrong, cannot be a basis for saying students were not protected from conditions harmful to learning when the system itself ensured there were children in the school system without the benefit of having a teacher with an ESOL endorsement.

131. Count 4 charges Respondent with violating

     
     

     rule 6A-10.081(4)(b) (then rule 6B-1.006(4)(b)), by intentionally distorting or misrepresenting facts concerning an educational matter in direct or indirect public expression. Count 4 has been proven by clear and convincing evidence.

132. Count 5 charges Respondent with violating

     
     

     rule 6A-10.081(4)(c) (then rule 6B-1.006(4)(c)), by using institutional privileges for personal gain. This violation has not been proven by clear and convincing evidence. While the evidence showed that Respondent was paid for the classes he taught, it was not established that he would not have been paid if he had not awarded the ESOL certifications for work not performed. Petitioner did not identify any other personal gain or advantage Respondent could have received.

133. Count 6 charges Respondent with violating rule 6A-10.081(5)(b), which was previously contained in

     rule 6B-1.006(5)(b), by failing to maintain honesty in all

     
     

     professional dealings. Petitioner established the violation charged by clear and convincing evidence.

134. Count 7 charges Respondent with violating rule 6A-10.081(5)(d), previously contained in

     rule 6B-1.006(5)(d), by engaging in “harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment.” Petitioner has established a violation of Count 7 by clear and convincing evidence, through his treatment of Christine Reed and Andrew Davis.

135. Finally, Count 8 charges Respondent with a violation of rule 6A-10.081(5)(f), formerly found at rule 6B-1.006(5)(f), by using coercive means or promised special treatment to influence professional judgments of colleagues. This violation has not been established by the evidence presented. While it is clear that Respondent engaged in preferential treatment toward certain teachers, it remains a mystery what truly motivated him to do so. In any event, the Administrative Complaint did not identify and the evidence did not reveal what professional judgment Respondent was supposed to be influencing.

     
     

136. In short, Petitioner has established that Respondent has committed the charges alleged in Counts 1, 2, 4, 6, and 7 of the Administrative Complaint, but not Counts 3, 5, and 8.

137. The Education Practices Commission has established disciplinary guidelines to provide a range of expected penalties for violations of section 1012.795 and the Principles of Professional Conduct for the Education Profession in Florida. See Fla. Admin. Code R. 6B-11.007. For the violations found in

     Counts 1, 4, and 6, the range of penalties is from probation to revocation. For Count 7, the penalty range is from a reprimand to revocation.

138. Rule 6B-11.007(3) provides for mitigating and aggravating factors the Commission may consider if it chooses to deviate from the penalty range in the guidelines. While there is no need to deviate from the penalty range here, the mitigating and aggravating factors are helpful in determining where within the range an appropriate penalty should be. Factors to consider include the severity of the offense; the danger to the public; the number of repetitions of offenses; the number of times the educator has been previously disciplined; his or her contributions as an educator; the damage, physical or otherwise, caused by the violation; and any effort at rehabilitation.

139. By all accounts, Respondent is a gifted educator, and no evidence was presented that he has ever been disciplined by

the Education Practices Commission. However, his skill set and lack of prior discipline does not outweigh the gravity of the violations proven in this case. His decision to award ESOL credits to teachers based on their skill set or contributions to their school was unilateral, and it was dishonest. While on the surface it appeared he was doing these teachers a favor, in reality he was jeopardizing their careers. Moreover, his behavior toward instructors who did not agree with him contributed to an environment that is antithetical to positive instruction and collaboration. Most importantly, his actions made a mockery of a program designed to make sure that children for whom English is a second (or perhaps third) language get a fair chance at a good education. Cheating in a classroom has severe consequences. So should this.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(g) and (j), and rule 6B-1.006(4)(b), (5)(a), and (5)(d), as alleged in Counts 1, 2, 4, 6, and 7 of the Administrative Complaint. It is further recommended that Respondent’s license as an educator be revoked, with the right to reapply to be determined by the Commission.

DONE AND ENTERED this 3rd day of August, 2016, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 3rd day of August, 2016.

ENDNOTES

1/ Testifying in the School Board hearing for Petitioner was Dawn Wilson, Christine Andrews, Julie Durden, Sherry Murrell, Heather Kopp, Catherine Johnson, Josh Corey, Andrew Davis, Suzanne Harman, Nicole Conrad, Ashley Snell, Karen Patterson, Donald Nelson, and Josephine Jackson. Respondent testified on his own behalf and also presented the testimony of Fred “Fel” Lee and Dane Gilbert.

2/ The Recommended Order in Case No. 13-2882 reflects that Respondent’s Exhibits 46, 60, 76, 82, 90, and 111 also were admitted. However, in the School Board case, all of the exhibits for which there was no objection were reflected as admitted before the presentation of any testimony. An examination of the exhibits provided along with the Pre-hearing Statement in the School Board case reveals that these exhibit numbers were “left blank intentionally,” presumably as place markers if necessary.

There are no physical exhibits actually included for these numbers. In addition, Respondent’s Exhibit 119 is a set of documents identified at hearing as DCSC Independent Study Component. At hearing, it was identified as Respondent’s Exhibit

116. However, Respondent’s Exhibit 116 was admitted in the School Board hearing, so the undersigned has assigned the exhibit number 119.

3/ The term used in the settlement agreement was “limited English proficiency,” of “LEP.” ELL is the currently used term for these students.

4/ At hearing, both for the School Board case and for the current case, the terms “hours” and “credits” were used interchangeably. It appears that the terms “points” or “credits” would be the more accurate description, and those terms will be used in this Recommended Order.

5/ pd360.com is an on-line professional development library for teachers.

6/ The referenced “domains” are the five subject areas listed in paragraph 4.

7/ Ms. Patterson did not believe that she was above the ESOL trainers in the School Board hierarchy, referring to herself instead as the “liaison” between the trainers and Ms. Wims.

8/ Mr. Hester had nothing to do with awarding ESOL points for foreign travel, so this method is not discussed in detail in the record. Mr. Hester testified that there is a low likelihood that a teacher will obtain good strategies for teaching ELL students from a trip to the Bahamas, and that there are very “low” expectations for the cross-cultural communications portion of the the ESOL requirement. The written description of the foreign travel independent study, however, indicates that the teacher must prepare a country data report prior to travel to the host country which includes 17 different components; prepare a country data report on the U.S. similar to the one for the host country; complete a travel journal; collect information through personal interviews and observations, including photographs; and create a written image of communicative patterns of the host country, including 14 different features.

9/ There was also testimony about and findings in the School Board Order regarding a class in 2009. The time frame for that class is beyond the scope of the Administrative Complaint in this case.

10/ Mses. Snell, Reed, and Chalker had all complained to Mr. Nelson, who replaced Mr. Gilbert as principal once

Mr. Gilbert retired. Mr. Nelson told them that he had an open- door policy and if anyone wanted to complain, they should come see him or put their complaint in writing.

11/ It turns out that none of these three women wrote the anonymous letter, although at least one was aware of the author’s intention to write one. The letter was written by Laura Strickland, the media specialist at Fletcher High School, who had an ongoing dispute with Mr. Hester regarding professional development credits.

COPIES FURNISHED:

Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education

Turlington Building, Suite 316

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Ron Weaver, Esquire Post Office Box 770088

Ocala, Florida 34477-0088 (eServed)

Dennis Michael Hester 14546 Luth Drive South

Jacksonville Beach, Florida 32250 (eServed)

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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: 16-000407PL

Orders for Case No: 16-000407PL