STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4860

)

LESTER JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on February 20, 1990 and May 17, 1990, in Miami, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Frank Harder

Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

For Respondent: William DuFresne

DuFRESNE AND BRADLEY

2929 S.W. Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violations alleged in the notice of charges; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on August 23, 1989, when the School Board of Dade County, Florida (Board) notified Respondent, Lester Johnson, of its action to suspend the Respondent and to initiate dismissal proceedings to terminate his employment with the Dade County public schools. The basis for that action was alleged to be Respondent's incompetency, misconduct in office, and gross insubordination.

The Respondent disputed the charges and requested an administrative review of the matter. The case was forwarded to the Division of Administrative Hearings for formal proceedings on September 5, 1989. On January 6, 1990, the Board filed a notice of charges that outlined the factual allegations related to Respondent's conduct which it alleged constituted gross insubordination, misconduct, or incompetence.

Due to the unavailability of witnesses and the scheduling demands of the the parties, the hearing was scheduled for two hearing dates. At the hearing, the Board presented the testimony of the following witnesses: Sherri Goldenberg, a student at Highland Oaks Junior High School (Highland Oaks) who was enrolled in Respondent's class; Gloria Gearon, a secretary/treasurer at Highland Oaks; Raymond Fontana, assistant principal at Highland Oaks; Roscoe Phillips, a student at Highland Oaks who was enrolled in Respondent's class; John Gilbert, the principal at Norland Middle School; Harold Blitman, the principal at Highland Oaks; and Patrick Gray. The following witnesses testified on behalf of the Respondent: Sandra Finegold, the library media specialist at Highland Oaks; Michael Anthony Oce, an industrial arts teacher at Highland Oaks; Lawrence Kennedy, Jr. (by deposition), a teacher at Highland Oaks; and Lester Nathaniel Johnson. The Board's exhibits which have been numbered 1 (Wege statement), 1B (Fontana memorandum), 2a (Lindahl memorandum) and 2 (a six page composite) were admitted into evidence. The Respondent's exhibits numbered 1 (TADS evaluation for 1984/85), 2 (TADS evaluations for the years 1985/86, 1986/87, and 1988/89), and 3 (the deposition of Kennedy) were admitted into evidence.

A transcript of the proceedings was filed on June 13, 1990. After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made:

1. The Board is the appropriate agency authorized to operate, control and supervise the public school system for the Dade County school district. As such, it is responsible for the discipline of teachers employed by the public schools.

   
   

2. At all times material to the allegations of this case, Respondent, Lester Johnson, was employed as a continuing contract teacher with the Dade County public schools. Respondent began his employment in August, 1975, and remained on contract until his suspension, August 23, 1989.

   
   

3. The Respondent completed his undergraduate studies at Bethune-Cookman College and received a masters degree in administration from Nova University. Throughout his teaching career, the Respondent has taught social studies at the high school or middle school levels.

   
   

4. On December 11, 1984, Respondent was observed for evaluation by Lois A. Lindahl, an assistant principal at Norland Junior High School. Subsequent to that observation, Ms. Lindahl conducted a conference with the Respondent to advise him of the three areas in which he had been rated unacceptable. Those categories were: preparation and planning, classroom management, and teacher- student relationships. Specifically, the administrator outlined complaints that had been received from students and parents concerning the Respondent's behavior. Among those complaints were the following: "picking on certain students in each class; ridiculing students; looking strangely at girls; challenging students." Respondent received a written summary of the foregoing conference on December 18, 1984, and, at that time, indicated he understood the concerns and would seek to improve his performance.

5. On February 27, 1985, John Gilbert, principal at Norland, met with Respondent to review complaints which had been received concerning his performance. At that time, Respondent was warned that the administration had received complaints that Respondent was "too familiar looking at girls." Several students had alleged that Respondent had stood behind a female student while she gave a report and "looked her up and down." Additionally, Respondent was advised that his manner of observing the girls in shorts at basketball games was inappropriate. Respondent acknowledged the comments and indicated his willingness to correct the situation. Following that conference, there were no similar complaints through the end of that school year.

   
   

6. At the conclusion of the 1984/85 school year, Respondent received an acceptable rating and was recommended for employment for the next year.

   
   

7. During the 1985/86 school year Respondent was employed at Highland Oaks Junior High School. Harold Blitman was principal at Highland Oaks at that time and met with Respondent regarding "rumblings" he had received concerning Respondent's treatment of students. Respondent was advised that a mutual respect with students needed to be established and that students should not be subjected to disparaging remarks. Respondent was formally observed on February 18, 1986, and, as a result, received an acceptable overall rating with a recommendation for employment on June 3, 1986.

   
   

8. During the next school year at Highland Oaks, Respondent was observed on two dates, September 15, 1986 and January 27, 1987. As a result of those evaluations, Respondent received an overall rating of acceptable with a recommendation for employment.

   
   

9. Respondent's performance during the 1987/88 school year deteriorated. Consequently, Respondent was given a prescription for performance improvement to correct the deficiency noted by the school administration. Specifically, Respondent was instructed to comply with School Board rules regarding the treatment of students and was cautioned regarding his conduct toward female students. Incidents of Respondent staring at female students, looking at them "up and down," and requiring females to approach him more closely than they wished to, were deemed inappropriate conduct. Respondent was advised that familiar conduct between himself and female students caused embarrassment and made them feel uncomfortable.

   
   

10. In February, 1988, a female student, Milissa Wege, complained that Respondent had called her "scum," had grabbed her forcefully by the arm, and ejected her from the classroom. A secretary observed a red welt on Ms. Wege's arm where Respondent had purportedly grabbed her. Respondent denied grabbing Ms. Wege, but a verbal confrontation did occur between them. The exact language of that conversation is not known.

    
    

11. In April, 1988, Respondent approached a student named Sherri Goldenberg. In addition to the conduct described in paragraph 8 which was displayed toward Ms. Goldenberg, Respondent approached Ms. Goldenberg during a movie and placed his hand on her shoulder. Respondent then rubbed her shoulder in a caressing motion which made Ms. Goldenberg very uncomfortable.

    
    

12. Subsequent to the events with Ms. Wege and Ms. Goldenberg, an investigation was completed and resulted in a letter of reprimand being issued to Respondent. He was instructed not to touch students, not to say demeaning things to students, and not to give female students any reason to

    believe he had some kind of sexual interest in them as that made them uncomfortable. Consequently, Respondent was given an unacceptable evaluation in category seven, professional responsibility.

    
    

13. In May, 1988, Respondent met with Raymond Fontana, assistant principal at Highland Oaks, regarding an incident involving Cory Smith. Cory's mother had registered a complaint against the Respondent because he had allegedly used demeaning terms ("stupid," "boy") toward her son. Respondent admitted that he had said the words but claimed that he had not intended to demean the student. Respondent was advised to refrain from such conduct in the future.

    
    

14. During Respondent's time at Highland Oaks, Mr. Fontana had a number of conferences with him, both formally and informally, to attempt to correct Respondent's treatment of students. Mr. Fontana urged Respondent to not touch students and to cease using derogatory or demeaning language toward students.

    
    

15. During the school year 1988/89, Respondent was observed on three dates: October 5, 1988; November 22, 1988; and November 28, 1988. On May 30, 1989, Respondent received an acceptable overall evaluation and was recommended for employment.

    
    

16. However, in June, 1989, an incident occurred which resulted in the Respondent being recommended for suspension with termination proceedings to follow. That incident involved a student named Roscoe Phillips. Respondent's class was in the library because his usual classroom, the auditorium, was being used for an assembly. Mr. Phillips was talking and being disruptive. Consequently, Respondent moved him to another seat to limit the student's interaction with the class. Mr. Phillips' poor conduct continued. Finally, Respondent told the student to be quiet, grabbed his mouth by pinching his lips together, and shoved his head backward. Incidental to the shoving motion, Respondent stepped on Mr. Phillips' foot. Right after the incident occurred, the student reported Respondent's conduct to the office.

    
    

17. On August 23, 1989, the Board suspended Respondent from his employment with the Dade County public schools.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

19. Section 231.36(4)(c), Florida Statutes, provides, in pertinent part:

    
    

    Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.

20. Rule 6B-4.009, Florida Administrative Code, defines misconduct in office as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system.

    
    

21. Rule 6B-4.009, Florida Administrative Code, provides, in part:

    
    

    1. Incompetency is defined as inability or lack of fitness to discharge the required

       duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:

       1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in

          the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

       2. Incapacity: (1)lack of emotional stability; (2)lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.

          
          

22. The School Board has established by clear and convincing evidence that the Respondent is guilty of misconduct. Respondent's pattern of conduct over the course of several years establishes that he failed to consider the rights of students, that he unnecessarily exposed them to disparaging verbal remarks and confrontations. Moreover, Respondent failed to, after repeated assistance from administrators, limit his physical contact with students. To his credit, however, Respondent has continued to make efforts to improve and has obtained acceptable evaluations in years when deficiencies were noted.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the School Board of Dade County, Florida enter a final order suspending the Respondent from his employment with the Dade County public school system for a period of one school year. Further, it is recommended that Respondent be required to participate in a continuing education program geared specifically to developing strategies for classroom management and the professional treatment of students.

DONE and ENTERED this 27 day of July, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this day of July, 1990.

APPENDIX TO CASE NO. 89-4860

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE SCHOOL BOARD:

1. Paragraphs 1 and 2 are accepted.

2. With the exception of the last sentence of paragraph 3, that paragraph is accepted. The last sentence is rejected as hearsay.

3. Paragraph 4 is accepted. It is not found, however, that the Board has presented sufficient evidence from which it must be concluded that Respondent caused the red marks on Ms. Wege's arm. It is accepted that she alleged that to be the case and that Respondent was counseled about it.

4. Paragraph 5 is accepted. In the future, the Board attorney shall please refrain from such lengthy paragraphs.

5. Paragraph 6 is accepted.

6. The first two sentences of paragraph 7 are accepted. The remainder is rejected as irrelevant.

7. Paragraph 8 is accepted. See, however, comment in paragraph 3 above.

8. With regard to paragraph 9, it is accepted to the extent addressed in finding of fact paragraph 15; otherwise rejected as irrelevant, contrary to the weight of the evidence, or comment.

9. Paragraph 10 is accepted to the extent that it correctly summarizes Mr. Blitman's testimony; however, as to its conclusion, it is rejected as contrary to the weight of the evidence. Respondent showed a bone fide interest in improving his performance and with sufficient guidance can do so.

10. Paragraph 11 is accepted as an accurate summary of

    Dr. Gray's testimony; however, as to its conclusion, it is rejected as contrary to the weight of the evidence. See additional comment in paragraph 9 above.

11. Paragraph 12 is rejected as contrary to the weight

of the credible evidence. The weight of the evidence established that Respondent and Ms. Wege had a verbal confrontation. No finding is made regarding the alleged "grabbing" of her arm. To that extent Mr. Kennedy's testimony supports Respondent's version of the incident and has been deemed credible.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraph 1 is accepted.

2. Paragraphs 2, 3, 4, 5, and 6 are rejected as recitation of the notice of charges with argument, or contrary to the weight of the credible evidence.

3. Paragraph 7 is accepted.

4. Paragraph 8 is rejected as contrary to the admission made by Respondent to the administrator.

5. Paragraph 9 is rejected as contrary to the weight of the credible evidence. See finding of fact paragraph 15.

COPIES FURNISHED:

William DuFresne DuFRESNE AND BRADLEY

2929 S.W. Third Avenue, Suite One Miami, Florida 33129

Frank Harder

Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County

Board Administration Building, Suite 301 1450 Northeast 2nd Avenue

Miami, Florida 33132

Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132

Dr. Patrick Gray Assistant Superintendent

Office of Professional Standards 1444 Biscayne Boulevard, Suite 215

Miami, Florida 33132

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Docket for Case No: 89-004860

Orders for Case No: 89-004860